the defendant, but that by her recent action in selling it to a purchaser in good faith he is precluded from resorting to the land but seeks to follow its proceeds. The action is equitable in its nature, and the mere fact that the complaint demands a money judgment under the circumstances does not change the nature of the cause of action. Murtha v. Curley, 90 N. Y. 372, is direct authority upon this question. As was said in Valentine v. Richardt, 126 N. Y. 272, 27 N. E. 255, under quite similar circumstances, the plaintiff is asking the money compensation, "not as damages, but as a substitute for the land itself." The case, therefore, falls within subdivision 5 of section 382 of the Code of Civil Procedure, and the statute of limitations does not begin to run until the discovery by the plaintiff of the facts constituting the fraud. Lightfoot v. Davis, 198 N. Y. 261, 91 N. E. 582, 29 L. R. A. (N. S.) 119, 139 Am. St. Rep. 817, 19 Ann. Cas. 747.

We are not considering the probability of the plaintiff's recovery. We only hold that in the manner in which the case was presented to the court, the allegations of the complaint being admitted, the plaintiff is entitled to relief.

The judgment should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except

WOODWARD, J. (dissenting). This is an action to collect damages alleged to have been sustained by the plaintiff through an alleged fraudulent disposition of real estate on the part of the defendant, which real estate the plaintiff claimed to own in equity. The action in form is entirely legal. The demand for relief is for a judgment for $4,000 damages, which are alleged to have been the value of the real estate in question, which has been sold to a third person, who was ignorant of the alleged equities of the plaintiff. Upon a motion by the defendant for a judgment upon the pleadings the learned trial court granted the motion, and the plaintiff appeals from the judgment.

The complaint alleges that the plaintiff, in 1871, purchased the premises in question, and that in 1888, in company with his wife, he transferred the property to the plaintiff's father, upon the promise of the father to reconvey the premises to the plaintiff upon demand; that subsequently the plaintiff's brother, S. Alfred Seely, induced the plaintiff's father to convey the premises to the said S. Alfred Seely and Seymour Seely upon the consideration that the two latter would reconvey the premises to the plaintiff when his financial affairs should be straightened out, and that the deed of the father was duly recorded in the year 1888; that thereafter the said Seymour Seely and wife quitclaimed the undivided one-half of said premises to the said S. Alfred Seely, and that such deed was duly recorded; that the plaintiff, who continued to occupy and work the farm, negotiated an exchange of the premises for a farm in Tioga county, and that on the 13th day of March, 1890, the trade was consummated; that at this time the plaintiff learned of the transfer of the legal title to S. Alfred Seely, and that an arrangement was entered into by which the said S. Alfred Seely agreed to give a deed of the premises to the owner of the farm in Tioga county, and to have a deed of the Tioga county farm made

out to the plaintiff, and that the said S. Alfred Seely subsequently reported to the plaintiff that such a deed had been made and delivered, but that the said S. Alfred Seely was holding the same in his safe for the plaintiff, and that at last he had completed his contract with plaintiff's father to restore the property. The plaintiff then alleges that this statement was false and untrue, to the knowledge of the said S. Alfred Seely, and that, on the contrary, the deed to the Tioga county farm was taken in the name af S. Alfred Seely's wife, the defendant in this action, and that the plaintiff paid the consideration for said deed by the transference of his equitable interest in the original premises, the defendant paying no consideration. The plaintiff further alleges that, relying upon the statements of his brother, S. Alfred Seely, that the deed stood in the plaintiff's name, he entered into a verbal contract by the terms of which S. Alfred Seely was to construct a barn and make other repairs in the premises in Tioga county in consideration of being permitted to take the timber from the Tioga farm, and that the said S. Alfred Seely took such timber during his lifetime, and that the widow, as executrix, continued to cut and remove the same after the death of the said S. Alfred Seely, and that these transactions all took place to the knowledge of the defendant, and that she took the title to said premises for the purpose of defrauding the plaintiff. Further, it is alleged that the defendant, on learning of the plaintiff's intention of bringing an action to impress a lien upon the premises, sold the same to an innocent purchaser, and the plaintiff brings the present action to recover the damages alleged to have been. sustained by reason of this transaction.

The answer denies the most of the material matters alleged in the complaint, and by way of affirmative defenses sets up various statutes of limitation, the effect of which the plaintiff seeks to avoid upon the theory that the statutes did not commence to run until his discovery of the alleged frauds some two years previous to the starting of the action. We are clearly of the opinion that the facts set forth by the complaint, if fully established, would not help the plaintiff to a recovery. plaintiff admits that he discovered the first alleged breach of trust on the part of his father as early as 1890, and the complaint shows that the deed by which this alleged breach of trust was consummated was recorded on the 25th day of August, 1888, only about two months after the alleged creation of the trust. Here was notice to the plaintiff that the legal title was no longer in the hands of his father, and that it was vested in the two brothers, without any record of the alleged trust. Subsequently one of the brothers quitclaimed to S. Alfred Seely, and this deed was duly recorded, so that there was more notice. Then the plaintiff claims to have negotiated a sale of the premises in 1890, and to have had an understanding with his brother, S. Alfred Seely, that the deed was to be taken in his name. He is presumed to know the law, and the deed, to have afforded him protection in his title, should have been recorded. Instead of looking to his interests, and seeing to it that the deed was taken in his name and duly recorded, he asks a court of law, 23 years after the transaction, to hold that he was excused from knowing of the fraud at that time, and to be entitled to assert his rights two years after his alleged discovery of the

fraud. Certainly, if there was a breach of trust in the conveyance from the father to two of his sons, the fraud upon this plaintiff was complete and actionable at that time. The plaintiff then knew that his rights had been invaded and that his brothers were the beneficiaries. They occupied no fiduciary relation toward him. They were the legal owners of the estate, and they were dealing with him in open hostility, for they had, by recording the conveyances, given notice to the world of their claim to title. With these conditions made matter of record, the plaintiff claims to have been deceived by his brother's alleged statement that he was holding the deed for him; and, without taking any steps whatever to ascertain the truth of the statement, the plaintiff has permitted the title to the Tioga county farm to remain in the defendant for nearly a quarter of a century, and now asks to recover in an action at law for his alleged damages. We think there can be no fair question that the action is barred by the statute of limitations, and that the complaint was properly dismissed upon the pleadings.

The judgment appealed from should be affirmed, with costs.

H. C. MINER LITHOGRAPHING CO. v. SANTLEY.

(Supreme Court, Appellate Term, First Department. December 4, 1914.) INFANTS (§ 57*)—GUARANTY RATIFICATION.

Where an infant executed a written contract of guaranty, and after he became of age wrote asking that an itemized bill be sent to him, there was no such "ratification" as to make him liable upon the guaranty.

[Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 136-148, 151; Dec. Dig. & 57.*]

Appeal from Municipal Court, Borough of Manhattan, First District. Action by the H. C. Miner Lithographing Company against Joseph Santley. From a judgment in favor of plaintiff, after trial before the court without a jury, defendant appeals. Reversed, and complaint dismissed.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

Max D. Josephson, of New York City, for appellant.

Joseph A. O'Brien, of Brooklyn (James A. Sheehan, of Brooklyn, on the brief), for respondent.,

SEABURY, J. The plaintiff sued the defendant upon a written contract of guaranty. The defendant pleaded infancy. It is conceded that the defendant was an infant at the time that the contract was made. The plaintiff seeks to overcome this defense by the claim that after the defendant became of age he wrote the plaintiff, asking that an itemized bill be sent to him. This act was not such a ratification of the contract of guaranty as to render the defendant liable upon it.

For other cases see same topic & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

22 Cyc. 604, and cases cited; International Text-Book Co. v. Connelly, 206 N. Y. 188, 197, 99 N. E. 722, 42 L. R. A. (N. S.) 1115.

The defense of infancy having been established, the judgment is reversed, with costs, and the complaint dismissed, with costs. All concur.

AJAX GRIEB RUBBER CO. v. MARSHALL.

(Supreme Court, Appellate Term, First Department. December 4, 1914.) APPEAL AND ERROR (§ 1175*)-DISPOSITION-JUDGMENT FOR PARTY.

Where the record showed that plaintiff established a prima facie case entitling it to recover $32 from defendant, but did not disclose any defense thereto, a judgment for defendant will be reversed, and a judgment for that amount awarded to plaintiff.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 45734587; Dec. Dig. § 1175.*]

Appeal from Municipal Court, Borough of Manhattan, Third Dis

trict.

Action by the Ajax Grieb Rubber Company against Raymond W. Marshall. From a judgment for defendant, and from an order denying plaintiff's motion to vacate and set aside the judgment as contrary to the evidence and the law, plaintiff appeals. Reversed, and judgment awarded plaintiff.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

Henry Hoelljes, of New York City, for appellant.

Harold C. Mitchell, of New York City, for respondent.

PER CURIAM. While the record in this case is in a confused condition, it does appear that the plaintiff established a prima facie case entitling it to recover $32 from the defendant. A careful examination of the record has failed to disclose any defense to the cause of action proved on behalf of the plaintiff.

It follows that the judgment should be reversed, and judgment awarded for the plaintiff for $32 and the costs taxable in the Municipal Court, together with the costs of this appeal.

HEBBERD V. AMERICAN SHEET METAL LATH CO., Inc. (Supreme Court, Appellate Term, First Department. December 4, 1914.) EVIDENCE 788 398, 455*)-PAROL-WRITTEN EMPLOYMENT CONTRACT.

In a salesman's action for breach of his written employment contract, providing that his salary should be $1,800 per year for selling metal lath, the average monthly sales of which should be at least 5,000 square yards, parol evidence was admissible to explain the ambiguity in connection with the use of the word "average," but not to contradict the unambiguous stipulation as to the period of hiring.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1766-1771, 2104; Dec. Dig. §§ 398, 455.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from City Court of New York, Trial Term.

Action by Harvey W. Hebberd against the American Sheet Metal Lath Company, Incorporated. Verdict for plaintiff. From denial of motion to set aside the verdict and for a new trial, defendant appeals. Reversed, and new trial ordered.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

Lewis & McNamara, of Brooklyn (William J. Lewis and Daniel McNamara, Jr., both of Brooklyn, of counsel), for appellant. Lewis F. Glaser, of New York City, for respondent.

COHALAN, J. The action was brought to recover damages alleged to have been sustained by the plaintiff because of a breach by the defendant of a written agreement of employment. The contract in suit provided for the employment of the plaintiff at a salary of $1,800 per year. The consideration of the services to be rendered was that the plaintiff should sell metal lath, the averaged sales monthly to be at least 5,000 square yards. Upon the trial the plaintiff was permitted to testify to conversations had with the president of the defendant corporation. These alleged conversations were had prior to the execution of the contract. An examination of the agreement showed that there was no ambiguity in the terms of the agreement, so far as a definite period of hiring was concerned. It was complete in its terms. The legal effect of the contract was a hiring for a year, and the oral evidence introduced tended to contradict that legal effect. Parol evidence is only received where doubt arises from the face of the instrument and from the language used therein. However, evidence of this character was admissible on the provisional part of the contract. If there was ambiguity therein, it related to the word "average," and on the plaintiff's own showing he did not average monthly sales of 5,000 square yards of metal lath. It appears that he was employed three months under the contract, and that his sales fell short of what was required under the terms of the agreement, and he was summarily discharged. The defendant on a new trial is entitled by parol evidence to have the compensation feature of the contract fully submitted to the jury.

The judgment appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

(88 Misc. Rep. 28)

RINDSKOPF v. ZIMMER.

(Supreme Court, Appellate Term, First Department.

December 4, 1914.)

1. CONTRIBUTION (§ 4*)-COMMON LIABILITY-PROMISSORY NOTE. One joint maker of a note, who pays the whole amount due, is entitled to contribution from the other makers.

[Ed. Note. For other cases, see Contribution, Cent. Dig. §§ 3, 4; Dec. Dig. § 4.*]

2. CONTRIBUTION (§ 6*)-PAYMENT OF COMMON LIABILITY-INDIVIDUAL NOTE. In an action where the defendant pleaded as a counterclaim the right For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes