Opinion of the Court, per FOLLETT, Ch. J.

have inquired and insisted on knowing all the facts. (Ellis v. Hermann, 90 N. Y. 466, 474.) The Dwights were bound under the circumstances to have made some effort to learn the facts, and are chargeable with notice of all that such inquiry would have disclosed. (Dunn v. Hornbeck, 72 N. Y. 80, 89; Pringle v. Phillips, 5 Sandf. 157; Parker v. Connor, 93 N. Y. 124.) If upon any finding warranted by testimony the plaintiffs would have been entitled to recover, the direction of a verdict for defendants was erroneous and a general exception to such ruling was sufficient. (Trustees v. Kirk, 68 N. Y. 458467; Frecking v. Rolland, 53 id. 422-426; Train v. H. P. Co., 62 id. 598–604; Vail v. Reynolds, 118 id. 297.) Upon an appeal from an order granting a new trial the appellant takes the risk not only of the questions considered by the court below, and upon which they have made the order, but of every other exception appearing upon the record, and every legal question that can be made by the respondent, who may sustain his order upon showing any legal error, whether noticed by the court below or not. (Caswell v. Hazard, 121 N. Y. 484; Mackey v. Lewis, 73 id. 382; Noyes v. Wyckoff, 114 id. 204.)

FOLLETT, Ch. J. An action to recover damages for the conversion of chattels is a strictly legal one which cannot be maintained unless the plaintiff is entitled to the immediate possession of the property, if in existence. Except as provided by statute possession by the lienor of chattels on which the lien is claimed is indispensable to support a common-law lien. One having such a lien can maintain trover if the property is wrongfully taken or withheld from his possession, but such an action will not lie to enforce an equitable lien as against the owner of the legal title who remains in possession of the property and has not contracted it to the lienor. The instrument under which the plaintiff claims to recover is in form a chattel mortgage. Gandolfo, who executed it, assumes to transfer the legal title to the machinery to Robert Deeley, the plaintiff's assignor, subject to be defeated upon the pay

Opinion of the Court, per FOLLETT, Ch. J.

ment of $4,700. But the machinery, not having been then manufactured, Gandolfo had no title to it (Andrews v. Durant, 11 N. Y. 35; Comfort v. Kiersted, 26 Barb. 472), and the instrument did not vest the legal title of the machinery in Deeley, nor did it create a legal lien upon the property described therein. (Gardner v. McEwin, 19 N. Y. 123; Jones v. Richardson, 10 Met. 481; Pettis v. Kellogg, 7 Cush. 456; Otis v. Sill, 8 Barb. 102; Conderman v. Smith, 41 id. 404; Thomas Chat. Mort. § 137; Jones Chat. Mort. § 138.)

We find no case which holds that the legal title to property not in existence actually or potentially can be transferred either by way of sale or mortgage. That an equitable lien may be created on property to be brought into existence is well settled, and an action to foreclose the lien may be maintained. It was said in Coats v. Donnell (94 N. Y. 177), “A contract for a lien on property not in esse may be effectual in equity to give a lien as between the parties, when the property comes into existence, and where there are no intervening rights of creditors or third persons, seems to be established by several decisions in this court." Kribbs v. Alford (120 N. Y. 519), which is relied on by the respondent, is not in conflict but in harmony with these views. It was there said "invalidity at law imports nothing more than that a mortgage of property thereafter to be acquired is ineffectual as a grant to pass the legal title. A court of equity, in giving effect to such a provision, does not put itself in conflict with that principle. It does not hold that a conveyance of that which does not exist operates as a present transfer in equity any more than it does in law. But it construes the instrument as operating by way of present contract to give a lien, which, as between the parties, takes effect and attaches to the subject of it as soon as it comes into the ownership of the party. Such we deem the rule to be in equity in this state." (McCaffrey v. Woodin, 65 N. Y. 459; Wisner v. Ocumpaugh, 71 id. 113; Coats v. Donnell, 94 id. 168, 177; Hale v. Omaha Nat. Bank, 49 id. 626, 632.)

It follows from these views that plaintiffs failed to establish

Statement of case.

a legal title, either as general or special owners, and were not entitled to recover.

The order should be reversed and the judgment entered on the verdict, affirmed, with costs.

All concur.

Order reversed and judgment accordingly.

WALTER MYERS, Respondent, v. ROBERT J. DEAN, Appellant.

In an action to recover for services, alleged to have been performed by plaintiff, as broker in procuring for defendant, at his request, a lease of property belonging to the city of New York, the power to lease which was in the board of commissioners of the sinking fund, the lease to be for the highest rental bid at public auction or by sealed bids after public advertisement (§ 170, chap. 410, Laws of 1882), plaintiff's evidence was to this effect: notices were posted upon the premises that they were to be rented and reference was made therein to the comptroller for information, his purpose being in accordance with custom to procure a satisfactory offer before advertising. Plaintiff having obtained from the comptroller a proposed rental and a diagram, told defendant that he had the property to rent; they went together to see the comptroller and defendant made an offer which was accepted by that officer; defendant signed a memorandum which contained a provision that he "should pay all brokerage." Plaintiff was not employed or invited by the comptroller to procure offers. The amount of plaintiff's commission was stated by him; this defendant agreed to pay if he obtained the lease at his bid which he did. Held, that the evidence justified a finding of a consideration sufficient to support defendant's promise; and so, that a motion for a nonsuit was properly denied.

Defendant's evidence was to the effect that plaintiff was not employed by and performed no services for him, and that his agency was in no sense a procuring cause in obtaining the lease. The court charged that if defendant stated to plaintiff before the lease was obtained that if he obtained the lease on his offer he would pay the commissions, plaintiff was entitled to recover. Held, error; as without some employment of or the performance of some service by plaintiff, there was no consideration for defendant's promise; and that the question of employment or service was for the jury.

(Argued January 28, 1892; decided March 8, 1892.) SICKELS-VOL. LXXXVII. 9

Statement of case.

APPEAL from judgment of the General Term of the Court of Common Pleas for the city and county of New York, entered upon an order made June 2, 1890, which affirmed a judgment in favor of plaintiff, entered upon a verdict and affirmed an order denying a motion for a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion.

L. E. Warren for appellant. The plaintiff is not entitled to recover upon the instrument signed by the defendant at the comptroller's office on November 2, 1888. (Presbyterian Church v. Cooper, 112 N. Y. 517; T. T. S. B. Church v. Cornell, 117 id. 601; Sweetman v. Prince, 62 Barb. 256; Clark v. Richards, 3 E. D. Smith, 89; Rogers v. Murray, 3 Bosw. 357; Wilkie v. Roosevelt, 3 Johns. Cas. 210; Bunten v. Ins. Co., 4 Bosw. 254.) The plaintiff did not render any services to the defendant at his request or from which an agreement on his part to pay brokerage could be implied. (Bartholemew v. Jackson, 20 Johns. 28; Livingston v. Ackeston, 5 Cow. 531; Griffin v. Potter, 14 Wend. 209; Maltby v. Harwood, 12 Barb. 473; Williams v. Hutchinson, 3 N. Y. 312; McCarthy v. Mayor, 96 id. 1; Warren v. R. R. P. Co., 31 N. Y. S. R. 628; Ehle v. Judson, 24 Wend. 97; Crasto v. White, 52 Hun, 473.) There was no consideration for any express promise made by defendant to plaintiff. (Smith v. Ware, 13 Johns. 257; Ehle v. Judson, 24 Wend. 97; Geer v. Archer, 2 Barb. 420; Chilcot v. Trimble, 13 id. 508; Ainsley v. Meade, 3 Lans. 126; 1 Pars. on Cont. 432; Goulding v. Davidson, 26 N. Y. 604; Evans v. Williams, 60 Barb. 346; Wheeler v. Billings, 38 id. 263; Oscanyon v. Arms Co., 103 U. S. 261; Carey v. W. U. T. Co., 20 Abb. [N. C.] 333.) If any promise was made by defendant, plaintiff's testimony shows that it was obtained through such misrepresentation and deceit that no action can be maintained upon it. (Murray v. Beard, 102 N. Y. 505.)

P. Q. Eckerson for respondent. If plaintiff rendered service to the lessee by introducing the defendant to the comp

Opinion of the Court, per BRADLEY, J.

troller, which the comptroller testifies was the fact, then plaintiff rendered all the services he was called upon to entitle him to brokerage. (Smith v. McGovern, 65 N. Y. 575; Wyckoff v. Bliss, 12 Daly, 324; Sussdorf v. Schmidt, 55 N. Y. 319.) The questions in this case were for the determination of the jury, and their verdict having been approved by the trial judge and General Term, the Court of Appeals will not interfere therewith. (Kennedy v. City of Cohoes, 100 N. Y. 623.) Even though the contract was void and illegal, which we deny, the defendant could not raise such a question upon this trial, as he had not set up such a defense in his answer. (O'Toole v. Garvin, 1 Hun, 92; Milbank v. Jones, 127 N. Y. 370; Code Civ. Pro. § 500; May v. Burns, 13 Abb. [N. C.] 384; Hall v. U. S. R. Co., 30 Hun, 375.)

BRADLEY, J. The action was brought to recover for services alleged to have been performed by the plaintiff as broker for and at the request of the defendant in procuring for him a lease of certain premises in the city of New York, owned by the city. The lease was made of date January 11, 1889, for the term of ten years, at the annual rent of thirty-one thousand dollars, except that the rent for the portion of the term preceding the first of May of that year was at the rate of $20,000 per annum. The plaintiff claimed and recovered as commissions one per cent of the gross rental sum for the entire term, which recovery, with interest included in it, was $3,216.49. The testimony given by the parties was in conflict, and the trial court charged the jury that if they believed the defendant's version of the affair the latter was entitled to a verdict.

It is not claimed that the plaintiff procured the execution of the lease to the defendant, He could not do that because that was dependent upon the plaintiff being the highest bidder at the auction sale of the term. The power to lease the property was in the board of commissioners of the sinking fund for the highest rental at public auction or by sealed bids after public advertisement, etc. (L. 1882, ch. 410, § 170.) Notices were posted on the premises that they were to be rented and in the