SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 32. "thence along the northeasterly side of Force Tube avenue 150 feet to the lot No. 464, and thence again easterly along said last-mentioned lot 82 feet, more or less, * to Richmond street." * From this description the presumption is that the line is but eightytwo feet in length. As it runs between two fixed monuments, Force Tube avenue and Richmond street, it is undoubtedly true that it carries all the land between those two streets, even though the distance be in excess of eighty-two feet. The counsel for the respondent in his brief asserts that the distance is actually eighty-seven feet; but I cannot find a positive allegation to that effect in the record. The nearest approximation to proof on that subject is a diagram or survey introduced in evidence, in which it appears that there is a distance of eighty-seven feet from Richmond street to an oblique line in the rear, but there is nothing on the map to show that that oblique line is the line of Force Tube avenue, nor does the name of that avenue appear on the map. Further, there is no evidence in the case to show that in this respect the survey is correct. The third objection is that the northerly wall of the northerly building on the premises stands, not on the premises, but on land to the north. The surveyors of the parties differed in their testimony on this question. The wall is but four inches in width. The purchaser's surveyors clamed that the wall was four and a half inches off the line. The plaintiff's surveyors claimed that the center line of the wall was one inch off at the front of the house, and one-half inch south at the rear; and so the referee, to whom the court referred the matter, found. I doubt if this discrepancy between the surveys is very material. However, the question is settled in favor of the plaintiff. By the terms of sale the purchaser did not buy any particular buildings or structures, but a certain plot of land with the structures that were on it. Therefore, if he can get a good title to the land purchased, and the right to maintain the structures on it as they existed at the time of his purchase, he gets all he bargained for. The case falls within that of Hendricks v. Stark (37 N. Y. 106) and is to be distinguished from that of Spero v. Shultz (14 App. Div. 423), where the contract was for the sale of a specific house and lot. By the plaintiff's survey, however, it appears that only one inch of the northerly wall stands on the premises, an If this was extent, of insufficient to maintain the structure. course, App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. a party wall the purchaser would have a right to the support of the whole wall; and, under the view I have expressed as to the construction of his agreement to purchase, he would have no ground for complaint. But nothing of the kind appears in the record before us. It is stated in the brief of the respondent that the mortgagor was, at the time of the execution of the mortgage, the owner of both the mortgaged premises and the premises adjoining on the north, and that she erected the buildings. If these are the facts, the wall was a party wall; or even if it stood entirely off the line, the purchaser at the sale in this action would have the right to its support for his buildings, and the whole difficulty would be cured. (Rogers v. Sinsheimer, 50 N. Y. 646.) But here again I cannot find in the record any proof of these facts. It may be they were conceded on the argument at Special Term, but this we cannot assume. The order appealed from must, therefore, be reversed, but the matter should be remitted to the Special Term for further proofs, so that the plaintiff, if he can, may substantiate his statements as to the ownership of the property, the construction of the buildings, and the actual distance between Force Tube avenue as laid out by the property owners, and Richmond street. The amount paid the surveyors for expert testimony and maps was improperly allowed as disbursements in the proceeding. The order appealed from should be reversed, and a further hearing ordered before the Special Term, with ten dollars costs and disbursements to the appellant. All concurred. Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term for further hearing. יד SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 32. In the Matter of the Application of DAISY E. TEESE, for a Writ of WILLIAM DWIGHT TEESE, Appellant; DAISY E. TEESE, Respondent. Costs, while not allowable in habeas corpus proceedings of a criminal nature, APPEAL by William Dwight Teese from so much of an order, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of May, 1898, as denies his motion to resettle a final order in habeas corpus proceedings for the custody of children, by striking therefrom a provision charging the said William Dwight Teese with $3,097.95 disbursements. J. Stewart Ross, for the appellant. John F. Clarke, for the respondent. WILLARD BARTLETT, J.: By the consent of the parties to this controversy, it was sent to a referee to take proof upon the question whether the custody of the children of their marriage should be awarded to the father or the mother. The referee reported that each parent should have the care and control of the children for six months alternately with the other, and the report has been confirmed at the Special Term. To the disposition of this branch of the case the father does not object; 1 App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. but he has appealed from the refusal of the court below to strike out a provision in the order of confirmation, charging him with $3,097.95 for the fees of the referee and stenographer. The order appears to have been entered ex parte at the instance of the relator, so that the appellant had no opportunity then to be heard upon the question whether he should be charged with the disbursements in the proceeding. It shows that it was made upon the evidence taken before the referee, which included an uncontradicted statement of the appellant to the effect that, prior to the filing of the return to the writ, he had offered to consent to an agreement by which he and his wife should alternately have the custody of the children. In view of this offer, there was no basis for an award of costs or disbursements against the husband, inasmuch as it evinced his willingness at the outset of the proceedings to give the wife without litigation all that she has obtained by going on with the reference, so far as the custody of the children was concerned. (See Bickford v. Searles, 9 App. Div. 158.) The insertion of the provision as to disbursements, therefore, was an erroneous exercise of the discretion of the Special Term at the time when the order was originally made; for, upon the proof then before the court, it appeared that the disbursements could have been saved if the wife had accepted the husband's offer, and hence he should not have been charged with an expense which seemed to be wholly due to her persistence in needless litigation. Upon the motion to resettle the order, however, the evidence was conflicting as to this alleged offer by the husband; and in an affidavit by the relator's counsel it is positively asserted that while the appellant did offer to allow the wife to see her children at times, "he at no time offered to allow her to have custody of the children. for an equal length of time with himself," but on the contrary maintained that she was unfit to be their custodian. With the contradictory affidavits on this subject before him, the learned judge at Special Term apparently reached the conclusion that the recommendation in the referee's report as to the custody of the children was broader and more favorable to the mother than any offer actually made by the husband; and we are not inclined to interfere with his determination of this issue of fact. We think the affidavits on the motion to strike out the provision in reference to the SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 32. disbursements may be considered in support of the original order, and thus regarded they afford sufficient warrant for charging the husband with such disbursements as may lawfully be taxed. While costs are not allowed in habeas corpus proceedings of a criminal nature (People ex rel. Van Riper v. N. Y. C. Protectory, 106 N. Y. 604), this is a civil special proceeding in which costs and disbursements may be awarded in the discretion of the court. (Code Civ. Proc. § 3240; Matter of Barnett, 11 Hun, 468.) Nowhere in the papers, however, are any facts set forth which show that the appellant is properly chargeable with the amount fixed by the order. In our opinion, where such a charge is made against a party in a final order in habeas corpus proceedings, the circumstances which determine the sum charged should clearly appear before the court by which the order is made. It would be a reproach to the administration of justice in this State for any court to compel a parent, who had not voluntarily agreed to do so, to pay $3,000 in judicial expenses in order to secure an adjudication upon his claim to the custody of his children. The testimony in cases of this character, should ordinarily be taken before the judges themselves—not because there are not equally able and conscientious referees, but in order to save expense to the parties, and because the judge who ultimately has to pass upon the question of the proper custody of the children with reference to their interests and welfare, can do so much more intelligently where he has heard and seen the witnesses than where he merely reads their statement in the minutes of a stenographer. But the present case was sent to a referee by the consent of the parties, so they have no ground of complaint on that score; and we infer that some sort of stipulation must have been made as to the pay of the referee and the stenographers, or Mrs. Teese would not have paid, as she swears she has paid, $1,550 to the one, and $1,547.95 to the others. The order denying the appellant's motion for a resettlement or amendment of the final order herein is reversed, without costs, and the proceeding is remitted to the Special Term to take proof as to the aggregate amount of disbursements legally payable to the referee and stenographers under the statute or any stipulation, and to amend such final order by inserting said amount therein as a charge against the appellant. |