and 102 New York State Reporter Replevin by Walter M. Jermyn against George Schweppenhauser. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed. The following is the opinion of the court below (TIERNEY, J.): "The subject of this action of replevin is two vertical boilers and their appurtenances. It has been submitted on an agreed-upon statement of facts, nothing being admitted by the pleadings but possession and detention by the defendant. The plaintiff is the manufacturer of the chattels. He sold them to a firm of Ellison & Co., dealers in steam boilers and steam-fitting supplies, whose store was at 2173 Seventh avenue, upon a contract of sale executed in duplicate, and one duplicate delivered to the purchaser. The contract called for the immediate delivery of the articles at premises Nos. 237 and 239 West 133d street, under an agreement that title should remain in the vendor until fully paid for. The vendor was informed at the time that the articles would be placed in the buildings on said premises. Ellison & Co. were not the owners of these premises, but the contractors for furnishing the steam fitting and the necessary boilers therefor. After the delivery of the boilers, Ellison & Co., without paying the plaintiff anything for them, sold and delivered them to the owners of the buildings, and placed them in the buildings. Subsequently the defendant purchased the buildings, with the said chattels therein, and paid the purchase price for said chattels, without notice of the agreement between Ellison & Co. and the plaintiff. The lien law, which has modified the severity of the old law of caveat emptor so as to protect the purchaser against possession vested in his vendor on secret conditions, expressly excludes boilers from its provisions, so that the determination of this case must rest upon general rules. Counsel have submitted this case upon the assumption that these chattels never became part of the realty, and there is nothing in the agreed statement of facts upon which the court might find that they were ever affixed to the freehold and became a part of the buildings. As between Ellison & Co. and the plaintiff, title to these chattels never passed, and their sale to a third party was a conversion. Ellison & Co. could give no better title than they had, unless the defendant is protected against the plaintiff's claim by an estoppel. This estoppel is claimed to arise from the fact that the plaintiff delivered the goods to a firm that he knew to be engaged in dealing in this class of merchandise. From this knowledge it is claimed the inference arises that he knew they were to be sold by the vendees, and with this understanding his placing his goods at their disposal was an authority to the vendees to make a valid sale, or, at least, that it would be a fraud on the purchasing public to furnish the vendee with the opportunity to make such a contemplated sale if its validity were afterwards to be questioned. It appears, however, that, though sold to a firm in this line of business, the boilers were not sent to replenish its general stock of merchandise at its regular store, but were delivered at specific buildings in course of erection, with the understanding that they were to be placed therein. If the plaintiff had knowledge that these were the buildings of a third party, and that Ellison & Co. had obtained the boilers to furnish them to the owner, he would be estopped from questioning the validity of a bona fide sale, after furnishing the boilers for that very purpose. It is agreed, however, that he had no notice of the relations of Ellison & Co. to the buildings. The question narrows itself, therefore, to this: Must the plaintiff be held to have necessarily assumed, from the fact that his vendee was engaged in the business of dealing in boilers, that these boilers were purchased by them to supply to others, and not for their own use? There are no facts supplied as to the apparent circumstances of Ellison & Co. to raise any inference as to the improbability of supposing them to be the principals interested in these buildings, or that they had some use for the boilers in the 30 days before payment came due other than a sale to another. The terms of sale are consistent only with the continued possession by the vendee. It is provided that, upon default in payment, the vendor may enter any place where the articles may be found, and remove the same, without hindrance, -a license that the vendee could give only as to premises of his own or under his control. It is further provided that all sums that may be paid on account of the purchase price shall be deemed compensation for the use of the articles while in the possession of the vendee, contemplating a continued possession rather than a sale. I do not feel justified in finding from these circumstances, and without any direct evidence of such an understanding, that the boilers were sold and delivered to Ellison & Co. upon any understanding by the plaintiff that they were only for a sale over by them. The defendant urges, further, that both parties are the victims of wrongdoing of Ellison & Co., and that, as between them, the loss should fall on the one by whose act the injury was permitted. I do not think that any such principle is applicable to the situation of these parties. The plaintiff is asserting his legal title to these articles, of which he has never been devested. So long as the legislature sees fit to allow possession of boilers to be parted with on conditions as to title which are valid without being made matter of record, the plaintiff had the right to make such a sale, and must be upheld in his legal rights, even at the expense of the victims of the opportunity for dishonesty so furnished. If the original owner of these articles had lost them by a larceny, no succession of purchases by innocent parties without notice could deprive him of his right of retaking them. This defendant, as the recipient of a conversion, is in no better position. It is true that the defendant's predecessors in title had nothing to put them on their guard against supposing that their contractor was furnishing his own articles, and custom does not suggest making such an inquiry. But their want of no ordinary precaution does not relieve them from the misfortune that may happen to any innocent purchaser, of having dealt with one who had no title, and they must bear the consequences of the rule caveat emptor. The chattels have been taken from the defendant by a marshal under a writ of replevin obtained by the plaintiff. No evidence has been furnished of any damages by reason of detention by the defendant. Judgment must be rendered accordingly in favor of the plaintiff, awarding him possession of the chattels described in the complaint, with the costs of this action." Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ. Gantz & Neier, for appellant. Meyer & Gilbert, for respondent. PER CURIAM. Judgment affirmed, with costs, on the opinion of the lower court. (57 App. Div. 232.) In re GOUNDRY'S ESTATE. (Supreme Court, Appellate Division, Third Department. January 9, 1901.) 1. APPEAL-ADMINISTRATOR'S BOND-INCREASE. Under Code Civ. Proc. § 2664, requiring that administrators give bond in a penalty fixed by the surrogate, not less than twice the value of decedent's personalty, a surrogate's order increasing the penalty of an administratrix's bond on a showing sufficient to raise a question as to whether or not certain property, not included in the inventory, belonged to the estate, would not be disturbed on appeal, since the amount of the penalty of the bond was largely discretionary with the surrogate. 2. SAME PROPERTY-OWNERSHIP-DETERMINATION. Since the ownership of property alleged to belong to an estate, to which an administratrix claims title, could be determined on an accounting, under Code Civ. Proc. § 2731, declaring that, on the judicial settlement of the accounts of an administrator, a contest arising in reference to property alleged to belong to the estate, but claimed by the accounting party, shall be determined, etc., the question of such ownership could not be entertained by the surrogate in an application to compel the filing of an amended inventory. and 102 New York State Reporter Appeal from surrogate's court, Schuyler county. Application by Mary Ann Brink to compel Hannah Goundry, the administratrix of the estate of Catherine Goundry, to file a new bond and an amended inventory. From an order granting the application, administratrix appeals. Modified. Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ. I. A. Seamans, for appellant. Charles H. McMaster, for respondent. PER CURIAM. The decisions of the surrogate upon two applications are presented by this appeal: First, an application to increase the amount of the penalty in the administrator's bond; secondly, to add to the inventory filed certain securities and personal property claimed to have belonged to the deceased at the time of her death, and which Hannah Goundry, the administratrix, had failed to put thereon. The applications were made by one of the next of kin of the deceased. Citations were issued upon such applications, and made returnable at the same time. Both were heard together, and the decision upon each was contained in the one order from which this appeal is taken. As to the application to increase the penalty of the bond, made under the provisions of section 2597 of the Code of Civil Procedure, we are of the opinion that the order made therein should be affirmed. The personal property stated in the inventory filed amounted to some $60, and the penalty of the bond filed was $400. Although the property, amounting to some $3,000, which the petitioner claims should have been inventoried, is not shown to be assets of the estate, enough appeared to the surrogate to raise a question whether it would not, upon an accounting, be shown to belong to the estate. Section 2664 requires the administrator to give a bond, and provides that it shall be in a penalty fixed by the surrogate, not less than twice the value of the personal property of which the decedent died possessed, etc.; thus leaving it very largely to the discretion of the surrogate as to how large a penalty he will require. Under the circumstances of this case, we see no reason for interfering with the decision of the surrogate in this respect. As to so much of the order appealed from as requires the property in dispute to be included in the inventory filed, we are of the opinion that it must be reversed. It seems to be settled practice that, if the administrator claims title to the property, the surrogate must dismiss the proceeding, and the question of ownership will be deter mined upon the final judicial settlement of the administrator's acThat such an inquiry can be had upon such accounting is plain from section 2731 of the Code. And that it will not be entertained upon an application to file a sufficient inventory, under section 2716, is clearly decided in the following cases: Thompson v. Thompson, 1 Bradf. Sur. 31; Montgomery v. Dunning, 2 Bradf. Sur. 220; In re McIntyre, 4 Redf. Sur. 489; In re Arbogast's Estate, 9 Civ. Proc. R. 232. In this respect the petitioner has mistaken her remedy; and, although the order made may be practically harmless to the ad-. ministratrix, it is not warranted by the practice, and should not, therefore, be sustained. Some suggestion is made in the respondent's points that the inventory filed is not correct in form. That question was not considered in the proceedings before the surrogate, and does not seem to be now before us. The order which we now make can be without prejudice to a proper proceeding to correct any such material error. So much of the order appealed from as requires the execution of a new bond is affirmed. So much of it as requires that the property therein specified be added to the inventory is reversed, and application for that relief is dismissed. No costs of this appeal are allowed to either party. (57 App. Div. 242.) GARRETT v. WOOD et al. (Supreme Court, Appellate Division, Third Department. January 9, 1901.) 1. DECISION-WHAT CONSTITUTES-WRITING-FILING. The entry of a written order, and a judgment in conformity therewith, overruling plaintiff's demurrer with leave to withdraw the same on payment of costs, which order was signed by the clerk, and not by the justice holding the term, sufficiently complies with Code Civ. Proc. § 1010, providing that on a trial by the court its decision in writing must be filed within a certain time after adjournment. 2 PLEADING-ANSWER-PARTIAL DEFENSES. On a demurrer to a particular defense to an action, in which it is not stated that the new matter is relied on merely as a partial defense to the action, the court must assume that it is claimed to be a complete defense, and test it accordingly. 8. NUISANCE-FORMER JUDGMENT-DEFENSE. A complaint charged defendants with maintaining a nuisance, to plaintiff's damage, and prayed for equitable relief as well as damages. The defense stated that plaintiff had already obtained a judgment for the same cause of action against one of defendants, and that such judgment had been satisfied. Held, that such answer did not state a complete defense, since it did not preclude recovery of damages accruing since the former action, or against new defendants not previously sued, and hence a demurrer thereto should have been sustained. 4. SAME-FINAL JUDGMENT-EQUITABLE RELIEF AND DAMAGES. Under Code Civ. Proc. § 1662, providing that final judgment for plaintiff may direct the removal of a nuisance, award damages. or both, a complaint asking for equitable relief against a nuisance, as well as damages, was proper. Appeal from special term, Albany county. Action by Lena Garrett against Bradford R. Wood individually and as executor, etc., and others. From an interlocutory judgment overruling plaintiff's demurrer to defendants' defense, and from an order denying a new trial, plaintiff appeals. Order affirmed, and judgment reversed. See 67 N. Y. Supp. 122. Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ. Barnwell Rhett Heyward, for appellant. and 102 New York State Reporter MERWIN, J. The issue of law arising upon the demurrer by the plaintiff to the second defense was duly brought to trial at a special term, and decided in favor of the defendants. An order in writing was made at the special term reciting the hearing, and ordering that the "demurrer be, and the same hereby is, overruled, with costs, and that the defendants have judgment therein, but with leave to the plaintiff to withdraw her demurrer within twenty days after service of a copy of this order on payment of costs." This order is not signed by the justice holding the term. It is signed by the clerk. This order, and a judgment in conformity therewith, were duly entered in the proper clerk's office. Thereupon the plaintiff moved, under section 1010 of the Code, for a new trial on the ground that no decision in writing had been filed. This motion was denied, and the plaintiff appeals. So that the question is presented whether the order for judgment was a sufficient decision. The plaintiff claims that it was not, and that view is supported by the case of Village of Palmyra v. Wynkoop, 53 Hun, 82, 6 N. Y. Supp. 62. The opposite view is taken in Garland v. Van Rensselaer, 71 Hun, 1, 24 N. Y. Supp. 783, and that case was affirmed in the court of appeals (140 N. Y. 638, 35 N. E. 892) without opinion. The case of Eaton v. Wells, 82 N. Y. 576, is in the same direction. The weight of authority seems to be against the position of plaintiff, and the order appealed from must, therefore, be affirmed. Upon the demurrer the question is whether the new matter set up in the second defense constitutes, if true, a complete defense to the action. It is not stated to be a partial defense, and therefore we must assume that it is claimed to be a complete defense, and it must be tested accordingly. Thompson v. Halbert, 109 N. Y. 329, 16 N. E. 675. In the complaint it is, in substance, alleged that the defendants are the owners of certain premises, and in possession and control of the same, and for several years have maintained thereon a nuisance, which still exists,-a description of the same being set out; that by reason thereof the plaintiff has been greatly damaged, to the knowledge of defendants, and that the same is the source of constant injury to the plaintiff; that the defendants refuse and neglect to remedy the same; that the plaintiff has suffered damages to the amount of $2,000. Relief is demanded for the damages, and that the defendants be enjoined and compelled to abate the nuisance. In the defense demurred to it is alleged "that in an action in the supreme court, in which Lena Garrett was plaintiff and Bradford R. Wood was defendant, for the same cause of action as that set forth in the complaint, the plaintiff recovered judgment, which was duly entered in the clerk's office of Albany county on the 30th day of April, 1900, for $773.83 damages and costs, which judgment was, prior to the commencement of this action, fully paid and satisfied." The argument on the part of the respondents is that this is an action for damages for a nuisance, and that the principle that satisfaction by one of several joint wrongdoers inures to the benefit of all (Lord v. Tiffany, 98 N. Y. 412) is applicable to the case. The cause of action, however, is of that character that the injury is continuous. In an action for damages simply, the recovery is only for such as have |