Stoddard v. Rotton. But, again, the operation of the covenants could not be higher than a virtual equitable assignment of the mortgage to the grantee; and it would seem that a merger would then be effected of such incumbrance in the fee; that this would clearly be the case at law, and that there was not sufficient to bring the case within the equitable rule, by which an incumbrance is sometimes held not to have been extinguished. (James v. Morey, 2 Cow., 246; 4 Kent's Com., 102, and cases.) There is, however, a yet more decisive view of the point found in the principle decided in Mickles v. Townsend. (18 N. Y. R., 575.) It was held that when a party granted land with warranty, and afterwards acquired a mortgage given by a former owner, he took such mortgage for the benefit of his grantee, and the lien was discharged and acquitted. The line of reasoning pursued by Mr. Justice STRONG, is as pertinent to show that a mortgage in the hands of a grantor at the time of his grant, shall be extinguished as fully as a mortgage subsequently obtained. It is true that both this learned Judge and Justice DENIO do not consider the doctrine of merger as strictly applicable to the case, because it might be that the grantor intended to keep the mortgage alive, within the case of James v. Morey. (2 Cow., 246.) But the doctrine of estoppel did apply, and the subsequent right passes by it. Whatever be the principle of the decision, it seems to me that the deed with warranty produced between the parties an extinction of the lien at law, and that nothing could have kept it in force but some act of the grantee recognizing and continuing its legal being. Nothing of this kind is in the case, and no presumed intention is warranted. . The result is that the plaintiff was entitled to his judgment even after the amendments of the answer allowed by the Referee. He has consented to modify this absolute right by paying a certain sum to the defendant; consented to put him in a position as if he were mortgagee in possession. The defendant can hardly complain of this. Several exceptions were taken to the rulings of the Referee during the trial, but none are noticed upon the points. The judgment should be affirmed. Judgment affirmed, with costs. Giles v. Crosby et al. JOHN S. GILES, Plaintiff, v. WILLIAM B. CROSBY et al., Defend ants. 1. Where a bond is given by several persons, by the terms of which they obligate themselves to pay a sum therein named, "on the completion of the opening of Canal street and the widening of Walker street, according to the plan now in the hands of Commissioners," &c., and the plan is subsequently, without the consent of the obligors, so changed that a gore of land at the part of Canal street, bounded by Centre, Walker and Baxter streets, instead of being taken and converted into a park, as the original plan contemplated, is not taken, but is left to be built upon, and Canal street is extended an additional distance, and the work is completed according to the modified plan, such obligors are not liable upon said bond. 2. The question of their liability on such bond is not affected by the fact that the change of plan made the improvement less expensive than it would have been if completed according to the plan referred to in the bond. (Before HOFFMAN, PIERREPONT and MONCRIEF, J. J.) Heard, October 26; decided, November 26, 1859. THIS action is brought by John S. Giles, as plaintiff, against Wm. B. Crosby, John C. Beekman, Henry R. Remsen, William Remsen and Frederick Schuchardt, as defendants. It was tried before Chief Justice BOSWORTH and a jury, on the 9th of March, 1859. It is brought by the plaintiff against the defendants to recover the sum of $10,000, with interest from March 24th, 1854, and is founded on a bond executed by the defendants to the plaintiff, dated November 8th, 1851, conditioned for the payment by the defendants of $10,000, on the completion of the opening of Canal street and widening of Walker street, according to the plan then (i. e., November 8th, 1851,) in the hands of Commissioners, for the opening of Canal street into Walker street, and the widening of Walker street. The condition of the bond declared that "these presents are given under the express condition that before the said obligors, or either of them, or either of their heirs, executors or administrators, shall be called upon or bound to pay the above mentioned sum, satisfactory evidence shall be given to them that the said sum of ten thousand dollars was necessarily paid or incurred in order to carry out said plan; Giles v. Crosby et al. the manner of its expenditure or distribution shall also be exhibited and shown to them." The complaint states that the said opening of Canal street and widening of Walker street was completed according to the said bond and the condition thereof, about September 11, 1854, and that satisfactory evidence was furnished of the actual and proper expenditure of the sum of $10,000. The answers of all the defendants, except that of William Remsen, deny these allegations. The complaint also contained a statement of a second cause of action for alleged work and labor and money paid and expended for the use of the defendants, but no evidence was offered in relation to any subject but the bond and the liability of the defendants thereon. The answer of the defendant, William Remsen, alleges that the improvement mentioned in the condition of said bond was never carried out, according to the plan therein referred to; but that, after the date of said bond, the plan was materially altered, and without his consent; and that he is absolved from all obligation under said bond, and denies that any evidence was furnished to him of the expenditure of any part of the $10,000. On the trial, it appeared that the plan in the hands of the Commissioners at the date of the execution of the bond, was as described in a resolution of the Common Council of New York, passed 1848. It also appeared that after the execution and delivery of the bond, the plan was, during the year 1852, altered. That the difference between the original plan and the one subsequently carried out, was: That the gore of land shown on the map, at the part of Canal street bounded by Centre, Walker and Baxter streets, which was, by the original plan, to be thrown into the street, was not taken and made a park by the subsequent plan; and that Canal street was continued beyond Rutgers street to East Broadway. The width of the street, which was to be seventy-five feet, and its course were not otherwise altered. The changes were, leaving the gore to be built upon, and the continuing of Canal street beyond Rutgers street, a distance of part of a block, to East Broadway. Giles v. Crosby et al. It was also proved that the plaintiff received notice from the defendants of this change of plan, before the confirmation of the report of the Commissioners, and that they would not assent to it, and considered themselves absolved from all liability by reason of the change; that the plaintiff in reply insisted that they were not discharged from liability. The plaintiff offered to prove "that by not taking the gore, the cost of the improvement was lessened to the amount of one hundred thousand dollars, and the improvement not injuriously affected thereby." The evidence was excluded, and the plaintiff excepted to the decision. The defendants, at the trial, moved for a dismissal of the complaint, on the ground that the condition of the bond was not fulfilled, because the plan in the hands of the Commissioners at the date of said bond was not carried out, the gore not being taken in, and Canal street being continued to East Broadway. The Judge granted the motion, and the plaintiff excepted. The Judge then ordered that the questions of law arising at the trial be first heard at General Term, and that the entry of judgment in the meantime be suspended. The plaintiff now moves for a new trial on the exceptions, and the defendants for judgment absolute. William Curtis Noyes and John B. Scoles, for plaintiff. I. The condition of the bond was fulfilled. What the defendants contracted for was a street seventy-five feet in width, from Centre street to Rutgers street. This they got. That by a subsequent resolution of the corporation of the city of New York, this street was extended half a block further to East Broadway, does not alter it. There was no change of plan in the widening of Walker street, or the extension of Canal street to Rutgers street. It was not an addition to the original plan, but an independent measure, by which the street was carried half a block further, although embraced in the same enterprise about which the plaintiff contracted. II. The gore of land to be made into a park was no part of the street, nor of opening a street. It was something contemplated to be added to the street. Not taking the gore therefore did not change the plan of the street, or abridge or in any way affect or Giles v. Crosby et al. diminish its value as a street. All that the defendant contracted for was a street seventy-five feet wide, according to the plan then in the hands of the Commissioners of Estimate and Assessments, and this they obtained. In truth the non-taking of the gore was an advantage to the defendants, as it lessened the expense. III. The exclusion of the gore of land, and the extension from Rutgers street to East Broadway, were, by resolutions of the mayor, aldermen and commonalty of the city of New York, over which the plaintiff had no control, and were matters entirely disconnected with the opening of the street contracted for. As they were no part of the opening, and not connected with plaintiff's contract, they cannot prejudice it. IV. The Judge erred in excluding evidence, that by not taking the gore the expense of the extension and widening was diminished, without injuriously affecting the improvement. Admitting, for the sake of argument, that this was a variance from the original plan, the question is, whether the condition of the bond was not substantially complied with. An immaterial change in the plan, not affecting the value of the improvement, but essentially benefiting the parties who were to pay for it, cannot legally absolve these defendants from the payment of the money secured by the bond. Suppose there had been a change of a few inches in some part of the street proposed to be widened, would that vitiate the bond? It was a question for the jury, whether the defendants had received in substance what they contracted for. The evidence offered by the plaintiff went to show that they had. It was for the defendants to rebut it, and show, if they could, that the alleged change of plan was a material alteration, and injuriously affected the improvement. Covenants are to be construed according to their spirit and intent, and it is sufficient if they are performed according to their spirit and intent, although not according to the letter. (Marvin v. Stone, 2 Cow., 781, 786, and cases there cited by Talcot, arguendo; Com. Dig., title "Covenant" E.) V. The bond constituted an agreement between the plaintiff and the defendants for work and labor, in procuring the street to be opened; and the clause in the condition of the bond, that the sum agreed upon was to be paid "on the completion of the opening of Canal street and widening of Walker street, according to the plan now in the hands of the Commissioners for the opening of |