and 85 New York State Reporter. power of sale presents no sufficient reason why the plaintiff should be denied her legal right to seek and obtain partition of lands in which she has an estate of inheritance as a tenant in common. Mellen v. Banning, 72 Hun, 176, 25 N. Y. Supp. 542; Palmer v. Marshall, 81 Hun, 15, 30 N. Y. Supp. 567. Such a right, however, is subordinate to the paramount rights of creditors; and, inasmuch as three years. had not elapsed from the granting of letters testamentary when this action was commenced, the lands affected thereby, whether partitioned or sold, would still remain charged with the payment of the debts of the decedent, and a purchaser thereof would take title thereto, subject to any claims which could be legally enforced against the same. It was to meet just such an emergency as this that the legislature, by a recent amendment to section 1538 of the Code of Civil Procedure, enacted that: "Where the action is brought before three years have elapsed from the granting of such letters of administration or letters testamentary, as the case may be, upon the estate of the decedent from whom the plaintiff derived his title, the final judgment shall direct that the proceeds of the sale remaining after the payment of the costs, referee's fees, expenses of sale, taxes, assessments, water rates, and liens established before the death of the decedent including any sum allowed to a widow in satisfaction of her right of dower therein directed to be paid, be forthwith paid into court by the referee making such sale by depositing the same with the county treasurer of the county, in which the trial of the action is placed, to the credit of the parties entitled thereto, to await the further crder in the premises." Laws 1896, c. 277. It is further provided by the same section that upon the certificate of the surrogate, showing that three years have elapsed since the issuing of letters testamentary, and that no proceedings are pending in the surrogate's court to mortgage, lease, or sell the decedent's real property, and upon the certificate of the county clerk showing that no notice provided for by section 2751 has been filed, the court may make an order directing the county treasurer to pay over to the parties to the action the moneys so deposited in court. The record be fore us does not disclose just when letters testamentary were issued, but, inasmuch as the testator died less than three years prior to the commencement of the action, the final judgment herein will doubtless, in compliance with the requirements of this statute, contain a provision which will furnish ample protection to the rights of all concerned; and, this being the case, it relieves the appellants' second contention of all apparent force. But it is further insisted that the awarding of costs should have been deferred until the final judgment, and such would perhaps have been the better practice. The amount of costs to be awarded, and the manner in which they shall be paid, cannot, of course, be determined until the property is sold. Code Civ. Proc. § 1559. But, inasmuch as the plaintiff succeeded in her action, it was almost a matter of course to award her costs, and we cannot see how any one is prejudiced by the fact that the interlocutory decree so declares. It does not pretend to adjudicate the right of any other party to costs, and consequently such right can easily be adjusted when application is made for final judgment. These views lead to the conclusion that the judg ment appealed from should be affirmed. We are inclined to think, however, that, in view of the peculiar circumstances of the case, costs should be awarded to each of the parties. Judgment affirmed, with costs of this appeal to each of the parties appearing thereon, to be paid out of the proceeds of the sale, and with out prejudice to the right of the defendants to apply for costs of the trial upon the coming in of the referee's report of sale. All concur. MABBETT et al. v. MABBETT et al. (Supreme Court, Appellate Division, Third Department. May 4, 1898.) 1. WILLS-CONSTRUCTION-ACTION BY EXECUTOR. Where mortgaged real estate is left by a testator, to be used by two brothers during life, and after their death to executors, to sell and divide the proceeds as provided by the will, the executors have sufficient interest to enable them to maintain an action to compel an assignment of the mortgage on payment of the debt, in order to prevent foreclosure, and thus save the estate from loss, and carry out the intention of the testator. 2. SAME ASSIGNMENT OF MORTGAGE. Where foreclosure of a mortgage upon real estate of a testator will result in loss to the estate, the court has power to order an assignment of the mortgage, on payment of the debt, in a suit by the executors of the estate. Appeal from special term, Saratoga county. Action by John H. Mabbett and others, as executors of the estate of Joseph M. Mabbett, against Stewart L. Mabbett and another, as executors of said estate, and Williard Lester, as trustee of the estate of Benjamin G. Scribner, and others. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiffs appeal. Reversed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ. Edgar T. Brackett (Walter P. Butler, of counsel), for appellants. James W. Lester (Charles S. Lester, of counsel), for respondents. HERRICK, J. The only ground of demurrer pressed upon us in this appeal is the fourth,-that "the complaint does not state facts . sufficient to constitute a cause of action." It does not seem to me very material to a decision of this case to consider in whom the title to the real estate left by the testator vested. His intention evidently was to furnish a home for his brothers, Jacob G. and Stewart L., during their lifetime, upon real estate owned by him, and that the executors should at least have a general supervision over such real estate during their lives, and upon their decease to sell it, and divide the proceeds as specified in the will. If this foreclosure and sale take place, these intentions of the testator will necessarily be defeated. The plaintiff's have an interest, as execators, in carrying into effect the intentions and desires of their testator, and in preventing their defeat. The bond accompanying the mortgage now under foreclosure was the personal bond of the deceased. Any deficiency upon the sale will be payable out of the estate in the hands of the executors, if any is left. Glacius 7. Fogle, 88 N. Y. 434. There is a liability, at least, that the ex 51 N.Y.S.-34 and 85 New York State Reporter. ecutors should endeavor to guard against. It is the duty of the executors to endeavor to protect the estate in their hands, and it is the duty of a court of equity to assist these executors in carrying into effect the intentions of the testator, and to aid them in protecting the estate. The only thing that the holder of the bond and mortgage is entitled to is its payment, with the interest, and any costs or disbursements that have been made or incurred in attempting to enforce its collection. It appears from the complaint that there is not sufficient personalty in the hands of the executors to pay the amount due upon the mortgage, and the only way in which a sale of the real estate can be stopped is by procuring a transfer of the mortgage. Thus, the executors, I think, have sufficient interest, for the reasons above suggested, to entitle them, upon paying, or procuring to be paid, to the holder of the mortgage, the amount due to him upon it, to an assignment of it, if it is within the power of the court to compel such an assignment. It is a power that is frequently exercised by the court. Platt v. Brick, 35 Hun, 121; Bayles v. Husted, 40 Hun, 376; Welling v. Ryerson, 94 N. Y. 98. It seems to me that this is a proper case in which to exercise that power. The holder of the mortgage will receive all he is entitled to, and the executors will be placed in a position to protect the estate. The judgment should therefore be reversed, with costs and disbursements of this appeal, the demurrer overruled, and judgment directed for the plaintiffs, with costs, with permission to the defendants to withdraw such demurrer, and interpose such further and other pleading as they may be advised, upon payment of costs within 20 days after the service upon them of a copy of the order herein. All concur. HOGAN v. O'BRIEN. (Supreme Court, Appellate Division, Fourth Department. May 7, 1898.) 1. CONTRACT-CONSTRUCTION. An agreement that an agent for the sale of lots shall lay out and grade streets and put in sewers and water mains, and that the principal shall deed him sufficient lots to pay the cost, does not authorize the agent to contract with a purchaser of lots to lay walks and pavements and put in a sewer. 2. VENDOR AND PURCHASER-RESCISSION of Sale. Where an agent sells lots, and makes an unauthorized contract with the purchaser to lay walks and put in a sewer, the breach of such contract will not support an action by the purchaser to rescind the sale. 8. RESCISSION OF SALE-INSTRUCTIONS. In an action to rescind a contract of sale of a lot, and recover payments, it is proper to instruct the jury that a verdict for defendant would leave plaintiff all his rights to the lot under his contract. 4. TRIAL-MOTION TO DIRECT VERDICT. A defendant does not waive his right to go to the jury by asking for a direction of a verdict in his favor. Appeal from trial term, Monroe county. Action by George S. Hogan against John C. O'Brien. From a judg ment for plaintiff, and an order denying a new trial, defendant ap On the 16th day of September, 1890, the defendant was the owner of a parcel of real estate on the west side of Lake avenue, in the city of Rochester, containing about 32.08 acres of land, and on that day entered into a written contract, under seal, with Warner & Bradley, wherein he gave to them "the exclusive right and privilege, until two years from date hereof, to sell and contract for the sale of" the land. The sales were to be made upon the terms and conditions, and in accordance with the restrictions indicated, in the contract. It was stipulated in the agreement, viz.: "That the parties of the second part may, at their option, lay out and grade such street or streets into and through said tract, and, at their option, put in main sewers and laterals, water mains and laterals, or such of those as shall seem best to them, for the increase of the value and sale of said lots; and they agree to forthwith open and construct the streets through and upon said tract, and proceed therewith with all reasonable diligence, and as fast as any such improvements are made and certified by the surveyors' estimate, and payments thereon are made by said second parties, and certified by the receipts of the contractors, inspectors, or surveyors, the said first party agrees, in consideration of the performance of said work, and in payment therefor, to deed and convey to said parties of the second part, by good and sufficient warranty deed, such lots upon the streets so improved, to be selected by said second parties, as shall be sufficient, at the schedule prices of said lots, with the added cost of the improvements, to be assessed on such lots as hereinafter provided, to pay for the cost of such improvements on such streets." Warner & Bradley commenced operations under the agreement entered into by them with O'Brien, and in October entered into negotiations with the plaintiff for the sale to him of lot No. 3, section F, on the south side of Bishop street, for the sum of $1,750. The negotiations were consummated by a written contract bearing date the 14th day of October, 1890, executed under the hand and seal of the plaintiff and the defendant. Fifty dollars was paid on the contract October 24, 1890, and $10 on the same day, and $540 was paid on the contract January 2, 1891, and indorsed thereon by Warner & Bradley. After the contract was delivered, the plaintiff discovered that it contained no provision requiring certain improvements to be made upon the property, and called the attention of Warner & Bradley to the omissions; and thereupon they executed an instrument, in writing (not under seal), in the following words: "For a consideration of $1 in hand paid, we hereby agree to improve Bishop street, on the convent property, by putting sewer in the street, with five-foot Portland cement walks, with a good and substantial roadbed. All improvements to be made as soon as the weather will permit, from and after this date. Warner & Bradley. "Rochester, N. Y., Oct. 24, 1890." It is averred in the complaint that the plaintiff paid over to Warner & Bradley, upon the purchase price of the said lot, viz.: "On October 14, 1890, the sum of three hundred fifty dollars; on October 14, 1890, the sum of fifty dollars; on October 14, 1890, the sum of ten dollars; on January 1, 1891, the sum of five hundred forty dollars; and on January 2, 1892, the sum of four hundred dollars; on January 1, 1891, $17.32 interest; on July 7, 1891, $24 interest; and on January 2, 1892, $24 interest; making in all paid by plaintiff to said Warner & Bradley, agents as aforesaid, upon his said contract of purchase, the total sum of one thousand three hundred fifty dollars, and $65.32 of interest moneys." The answer of the defendant admits that the plaintiff has paid to Warner & Bradley, upon the purchase price of lot No. 3, referred to in the complaint, the several sums and amounts of money, and upon the dates respectively, set forth in the complaint. It is alleged in the complaint that Bishop street has never been improved as contemplated by the parties, and by the conditions of the contract so made between the defendant and Warner & Bradley, or the contract of purchase so made by the plaintiff, and the said street has never been constructed, nor have the sewers been put in, nor the sidewalks laid, all of which said improvements should have been made not later than the spring or summer of the year 1891, although the plaintiff has frequently requested to have same done. Plaintiff avers that by reason of the premises he "has elected to terminate and 85 New York State Reporter. said contract, and to cancel and rescind the same and all relations thereunder. and his said purchase of lot number three; and accordingly, on or about the 11th day of September, 1896, and the 15th day of October, 1896, plaintiff did so terminate, cancel, and rescind such contract, and not.fied the defendant of the said termination and rescission, and then and there offered to return to the defendant his said written contract of purchase and agreement as to improvements, and to surrender up to defendant all plaintiff's rights thereunder. and to restore to defendant all that he (plaintiff) had received under or in pursuance of said contract, and demanded of defendant that he (said defendant) return and repay to plaintiff all moneys theretofore paid by plaintiff under said contract." It is averred that the defendant "declined and refused and neglected to so repay said moneys, or to restore plaintiff to his position before making the said contract." The answer of the defendant denies that Warner & Bradley had any authority to make any contract for him with respect to the sale of any such lot or lots. The answer alleges there is a balance due upon the contract, of $400, which became due and payable October 14, 1892, and that the plaintiff has neglected and refused to pay the same: and the defendant alleges "that he is ready, and he hereby offers, to convey to the plaintiff, or to the purchaser at the sale to be made under the judgment herein, the said lot three (3), on receiving the balance remaining unpaid on said contract with plaintiff." At the close of the plaintiff's evidence the defendant moved for a nonsuit, upon several grounds, which was denied, and an exception taken. At the close of the evidence the defendant asked the court to direct a verdict for the defendant, and for a foreclosure of the contract under the counterclaim which is in proof. The motion was denied. and an exception was taken. Thereupon the plaintiff moved for a verdict in behalf of the plaintiff. The motion was denied, and an exception was taken. Thereupon the defendant asked for the direction of a verdict in favor of the defendant "upon the general ground that the plaintiff has not shown facts sufficient to constitute a cause of action." The motion was denied, and an exception was taken by the defendant. Thereupon the court stated."that there seemed to be a question for the jury on the apparent authority of Warner & Bradley." Thereupon the plaintiff's counsel stated "that, if that question was submitted to the jury, the defendant must withdraw his request for the direction of a verdict." Defendant's counsel declined to withdraw his request for a direction of a verdict for the defendant, and thereupon the court stated, viz. "that the defendant's counsel must take one horn or the other of the dilemma, and could not ask for a direction of a verdict in defendant's behalf, and, that being denied, then ask to go to the jury." The defendant took an exception to this ruling. Thereupon, it seems, the counsel for the defendant "consented that the court direct a verdict." Thereupon the court observed as follows: "If you both join in a request for the direction of a verdict, I will direct a verdict. Gentlemen of the Jury: Both counsel having asked-" Thereupon the counsel for the defendant stated: "I ask to withdraw that. I will ask to go to the jury upon the question of fact. whether, under all the circumstances testified to, Warner & Bradley were held out by apparent authority to be the agents of O'Brien, and authorized to sign the contract of October 24th." The court then observed, viz.: "I think that is a question of fact, to be submitted to the jury." Thereupon the defendant's counsel asked to go to the jury upon the question of laches, which request was denied, and an exception was taken. At the close of the charge. the defendant's counsel asked the court to charge "that the effect of a verdict for the defendant would leave Mr. Hogan all his rights to the lot in question under his written contract with O'Brien." The request was declined, and an exception was taken. Also, requested the court to charge: "That the effect of a verdict for the defendant would be to leave Mr. Hogan with all his rights under the contract for the purchase of the lot, and that he would be credited on the purchase price with all the payments which he had made." The request was declined, and an exception was taken. There was some evidence given tending to indicate that the plaintiff received the two papers-the contract signed by O'Brien, and the other one signed by Warner & Bradley, relating to the improvements-at the same time. Evidence was given tend |