author: Truax, J.

text:
    James H. Havens, Pl'ff, v. The West Side Electric Light & Power Co. et al., Def'ts.

      (Supreme Court, Special Term, New York County,

      Filed January, 1892.)

    1. Mechanics’ lien—Consent of owner.
    Where the lease of land contales no permission or provision giving the tenant a right to construct buildings thereon, and the tenant subsequently makes contracts for the erection of buildings, and the participation of the owner in such erection is at most as agent of the lessee, the work is not done with the consent of the owner within the meaning of the act and' liens filed do not attach to .the land. '
    3. Same—Trade fixtures.
    Machinery placed by an electric light company in a building erected by it on leased land, may be removed by it and does not become a part of the realty.
    Action to foreclose a mechanic’s lien.

      William Stone, for pl’ff; Rudd & Hunt, for def’ts; Archibald G. S henstone, Vincent & Wood and Hurd & Grim, for def’t lienors ; John J. Leriihan, for receiver; B liss & Schley, for def’t Striker.
   Truax, J.

The defendant Striker was the owner of a certain-lot of land. He leased that land to the West Side Electric Light & Power Company. Said company entered into contracts with the plaintiff and the defendant lienors to erect a building on said lot of land. The lease from the defendant Striker to the said company contains no permission or provision giving the right to-the said company to erect or construct any building or appliance or to put in machinery on the said land. It is now sought to-hold liens on said land, upon the ground that the defendant Striker consented to the construction of the building. I do not see how it can be said that the work was done, and the materials were furnished, with the consent of Striker. He was not in possession of the premises, and could neither consent or dissent to the erection of the building. The work was done and the materials were furnished, not with the consent, but without the dissent of the owner. As far as the lessee of the premises was concerned, the consent or dissent of the lessor was immaterial. The most that can be said is, that Mr. Striker acquiesced, and acquiescence is not consent. We give consent when we yield what we have the right- or the power to withhold.

I cannot find a better exposition of the law on this point than that given by Judge Van Hoesen, at special term, common pleas, in Ottiwell v. Watkins. This opinion is not reported, but may be found in the printed' book used at the general term. It is as follows:

“ Consent implies a degree of superiority; at least the power of "preventing. It implies not merely that the person accedes to, but that he authorizes an act Crabbe’s Synonyms.” The case at bar is to be distinguished in several respects from Otis v. Dodd, 90 N. Y., 336; Schmalz v. Mead, 125 id., 188; 34 St. Rep., 779; Miller v. Mead, 127 N. Y., 544; 40 St. Rep., 177.

In Otis v. Dodd the owners of the lands leased them and the lessees covenanted in the lease to erect certain buildings thereon, which, at the expiration of the lease, should become the property of the owners. Moreover, the owners of the land took an active part in the construction of the building. They took the measurements and designated where the buildings were to be put; they told the'builder, the plaintiff, how deep to go for the foundation. They said to him, when he came to ask about the responsibility of his contractor, to go on and do the work, and if he was not ' paid he could file a lien and secure himself. And on page 57 of the printed case it is said that the building became the property of the owners of the lots, and that the owners, Dodd and Ross, did more than simply consent.

In Schmalz v. Mead, supra,the husband of the defendant, as her agent, entered into a written contract with one Kuhn for the sale to said Kuhn of certain lots. In this contract Kuhn contracted to build certain houses on those lots, and the title to the land was mot to pass until the completion of the buildings. This contract was assigned to the defendant, who was the owner of the lot. ’The parties who claim liens performed labor or furnished materials in the erection of the buildings specified in the contract with Kuhn. The court of appeals call attention to the first and •fifth sections of chap. 342 of the Laws of 1885, which are as follows: The first section provides that “any person * * * who shall hereafter perforin any labor or services, or furnish materials which have been used or which are to be used in the erection, altering or repairing any house, with 'the consent of the •owner, as hereinafter defined * * * may have a lien,” to the extent of the interest of the owner; while the fifth section provides that “in the cases in which the owner has made an agreement to sell or convey to the contractor or other person, such" ■owner shall be deemed to be the owner within the intent and meaning of this act, until the deed has been actually delivered ■.and recorded.”

It is to be noticed that in the case at bar the deed was actually delivered and recorded before the lien had been filed. On these facts it was held that “ the defendant’s relation to and interest in the land constituted her the owner thereof, within the meaning of the word owner,” as defined in the fifth section of the Mechanics’ Lien Law, see Miller v. Mead, 127 N. Y., 548; 40 St. Rep., 177, and on the authority of Otis v. Dodd, that the contract itself providing for the doing of the work and the furnishing of materials,, the work was done, and the materials were furnished with the; consent of the owner. Miller v. Mead, supra, is to the same-effect as Schmalz v. Mead.

In Husted v. Mathes, 77 N. Y., 388, the land on which the-buildings were erected was the property of a Mrs. Storms, and the-improvements were made thereon by her husband with her knowledge and consent, and for her benefit In other words, she allowed her husband to improve her property, and received the benefit of the work done and the materials furnished. She ratified the acts of her agent, and therefore those acts became her acts. Nellis v. Bellinger, 6 Hun, 560, is of like character; Burkitt v. Harper, 79 N. Y., 273, is like Otis v. Dodd, supra, in respect to the provisions of the lease to erect buildings.

Certainly it cannot be that if the owner in fee of a lot of land makes a contract with a builder to erect a building on that lot of land fora certain sum of money, and pays him that sum of money* before any lien has been filed, that a sub-contractor, or one who-has furnished materials to the builder, has the right to file a lien on" the property as against the owner of the property. And yet the owner of the property has given his consent to the erection of' the building.

Chapter 379 of the Laws of 1875 provides that “ every person performing labor upon * * * any building shall have a lien on the same for the work done * * * whether done at the instance of the owner of the building * * * or his agent,” and yet it was held in Cornell v. Barney, 94 N. Y., 394, that the building was not erected for the owner of the lot, and in-no proper sense could it be said that the materials that had been, furnished for the building were furnished at his instance, although the person to whom he had let the lot had contracted to erect a. building on the lot, which, in certain contingencies, might become-the property of the owner of the lot. In Knapp v. Brown, 45 N. Y., 207, and in Muldoon v. Pitt, 54 id., 269, the words “ with the directions of the owner or his agent,” of the chapter 500 of the Laws of 1863, were construed by the court of appeals “ to-give a lien only in case there was a contract, express or implied, with the owners of the land, for doing the work or furnishing the-materials.” See Cornell v. Barney, 94 N. Y., 400.

To the same effect, in Craig v. Swinerton, 8 Hun, 144, construing the words “ with the consent of the owner,” in chapter 489 of the Laws of 1873.

The view that I have taken is not in conflict with Ross v. Simon, 30 St. Rep., 545, which held that an averment in a complaint that the owner consented to the performance of the labor and the supplying of materials was sufficient on demurrer to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action. “It is not necessary,” said the court in that case, “ to aver how or under what circumstances-the consent of the owner was given. * * * We have not now to deal with the question whether the facts to be proved will bring; the case within the authorities.”

But it is contended that the defendant Striker participated in the erection of the building. His participation at the most was but slight, and he participated not as the owner of the lot, but as the agent of the company, lessee of the lot. A man acting as .agent for another, and known so to be acting, binds his principal and not himself individually.

Another question arises upon the claim made by the defendants Hunter and Willis.

They have obtained a judgment against the defendant company and have issued execution thereon and sold certain machinery belonging to said company. The machinery put upon the premises •described in the complaint was at all times the property of the •company, could be removed by it, and never became part of the •realty.

As was said by the general term of this court, in Watts Campbell Co. v. Yuengling, 51 Hun, 304; 21 St. Rep., 186; aff’d, 125 N. Y., 1; 34 St. Rep., 255, “ It is largely a question of intention whether machinery placed in a building is to be considered as attached" to the freehold or not. There are numerous cases where the controversy has arisen between landlord an"d tenant, in which the principle has been laid down that fixtures erected by a tenant in a building for the convenience of his trade may be removed by him. at any time during his term, and this conclusion is arrived at upon the principle that they were necessary for the carrying out of his trade, and that as he wal not the owner of the fee, there was no presumption that he intended to make them part thereof. So it was held as early as the case of Holmes v. Tremper, 20 Johns., 29, that a cider mill and press erected by a tenant at his own expense and for his own use, though fixed to the soil, are his own property and removable by him at the end of the term.”

Let the findings, etc., be settled on notice.


source: Caselaw Access Project

author: Vann, J.

license: Public Domain

text:
    Seth Wells, Resp’t, v. John W. Garbutt, App’lt.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    1. Deed—Implied reservation—Easements.
    Where the owner of two parcels of land conveys one by an absolute and unqualified deed, an easement will be implied in favor of the landretained by the grantor, and against the land conveyed to his grantee, only in case the burden is apparent, continuous and strictly necessary for the enjoyment of the former.

      % Same.
    Prior to July 1, 1856, the father of defendant had owned lots 87 and 43 and had acquired the right from the owner of 88 to overflow his lot by a dam erected on 48. On that day he gave a mortgage upon 41 acres of lot 37, without reserving the right to flow any part of the lands mortgaged. In 1858 the mortgagor conveyed lot 87 to defendant subject to the mortgage, and also conveyed the mill property on 43. In 1888, the mortgage ibeing foreclosed, plaintiff bought it in, no right being reserved by the judgment or deed to defendant to flow back on the mortgaged premises. It -was not found by the trial court that there was any apparent overflow at the time when the mortgage or the deed was given, or that the mortgagee or the grantee had any notice of the facts when either instrument was accepted, both being given at a season when the water was low, nor did it appear that the water-power of defendant would be materially diminished if he were not permitted to overflow the land in question. Held, that upon the facts as found it would be unreasonable to hold that the mortgagor-intended to reserve any right in the nature of an easement over the mortgaged premises, or that the mortgagee understood when he accepted the security that it was cut down in extent and reduced in value by the fiction of an implied reservation.
    (Haight, Pabkeb and Landon, JJ., dissent.)
    Appeal from a judgment of the general term of the supreme court in the fifth judicial department, affirming a judgment entered upon the decision of the court on trial .at special term.
    This action was brought to restrain the defendant from so obstructing the waters of Allen’s creek, in the town of Wheatland, county of Monroe, as to cause them to set back upon the lands •of the plaintiff.
    The trial court found that Allen’s creek is a natural stream of water flowing in an easterly direction across lot 37 to lot 38 and thence across lot 43 in said town. The defendant is the owner of a flour and plaster mill on lot 43, the machinery of which is propelled by the water of -said stream, impounded by a dam on :said lot, which until the year 1887 set back the water across lot .38 onto lands now belonging to the plaintiff in lot 37. For more than fifty years prior to 1887 there was a dam, rebuilt at intervals, on substantially the same site, creating a .water power used to run mills owned by the defendant and his grantors continuously since 1828. Prior to July 1, 1856, Phillip Grarbutt, father of the defendant, owned lots 37 and 43 with the mill and dam on the latter and had acquired the right from the owner of lot 38 to cause the water to flow back over it. On the day last, named said Phillip Grarbutt gave a mortgage upon forty-one .acres of lot 37 to one Fairchild, to secure the payment of $1,600, without reserving the right to flow any part of the lands thus mortgaged, which laid on both sides of the stream. At the date •of said mortgage the mills were in operation and the dam, maintained by Phillip Grarbutt on lot 43, when it was filled, set back the water across and beyond the mortgaged premises. In 1858, Phillip Grarbutt conveyed lot 37 to the defendant, subject to said mortgage, and at the same time he also conveyed to him the mill property on lot 43. June 27, 1888, pursuant to a judgment of foreclosure based upon said mortgage, the premises therein described were sold and conveyed to the plaintiff, who has ever .since owned the same in fee and has been in possession thereof. Neither in said judgment nor in the referee’s deed was there reserved to the defendant any right to cause thé water of Allen’s creek to flow back onto any part of the premises so conveyed to the plaintiff. While the defendant owned lots 37 and 43, and until within a short time before the foreclosure sale, he maintained said dam at its accustomed height, the same as it had existed continuously since 1828.
    In 1887 a portion of the dam was carried away by high water, and, when this action was commenced, the defendant had partly ¿rebuilt it, and intended to carry it up to its former height, the effect of which would be “ to set back the waters to some extent upon that part of lot 37 owned by the plaintiff, and to interfere-with and obstruct the natural flow of waters of Allen’s creek thereon.”
    After finding the foregoing facts in substance, the trial court found as conclusions of law that there was “ no implied reservation to the defendant of the right to set back the waters of Allen’s creek upon the lands of the plaintiff, which he bought at the foreclosure of saifl mortgage; ” that the defendant had no right to so set back said waters as to flood any part of plaintiff’s premises, “ or to render any portion thereof wet, spongy or unfit for agricultural purposes.” A permanent injunction was awarded accordingly. As no part of the evidence appears in the appeal book, the questions involved are raised by exceptions to the conclusions, of law.

      John J. Snell, for app’lt; Porter M. French, for resp’t.

       Affirming 30 St. Rep., 1021

   Vann, J.

Both parties unite in the position that the plaintiff' acquired through the sale in foreclosure the entire estate of both mortgagor and mortgagee as of the date of the mortgage. Rector, etc., v. Mack, 93 N. Y., 488; Pardee v. Steward, 37 Hun, 259, 262; 2 R. S., 192, § 158; Code Civ. Pro., § 1632. The question presented for decision, therefore, is whether a riparian owner, who-has imposed a burden on one part of his land for the benefit of another part, upon conveying the former without express reserva^tion, should be held under the circumstances of this case to have impliedly reserved the right to continue the burden. As a grantor cannot derogate from his own grant, while a grantee may take the language of the deed most strongly in his favor, the law will imply an easement in favor of a grantee more readily than it will in favor of a grantor, and this distinction explains many of the apparent inconsistencies in the reported cases. Some learned judges, in considering what may be termed an implied grant, as distinguished from an implied reservation, without, however, mentioning the distinction, have used language apparently applicable to-all easements existing by implication, when it was in fact intend'ed. to be limited to those existing in favor of a grantee.

Others in deciding that an easement was impliedly created by a grant and conveyed to the grantee, have gone farther in their-discussions than the point involved required, and have broadly declared the rule to be reciprocal and applicable alike to benefits conferred and burdens imposed, provided the marks of either were open and visible. Such was the case in Lampman v. Milks, 21 N. Y., 506, where the discussion outran the decision, for, while it was decided that, on the facts then appearing, an easement should be implied in favor of the grantee against the. grantor and his remaining lands, it was asserted that under like circumstances an easement would be implied in favor of the grantor against the grantee and his lands. The latter proposition was involved neither in the case decided, nor in any of those relied upon to support it, except such as have since beem overruled, either expressly or impliedly. So much has been written upon the general subject of implied reservation that a review of the authorities is no longer practicable in an opinion of reasonable length, and we shall content ourselves by announcing the rule applicable to the facts of this case, and citing a few out of the many authorities upon which it is based.

Where the owner of two parcels of land conveys one by an absolute and unqualified deed, we think that an easement will be implied in favor of the land retained by the grantor, and against the land conveyed to his grantee, only in case the burden is apparent, continuous and strictly necessary for the enjoyment of the former. Outerbridge v. Phelps, 13 Abb. N. C., 117; Shoemaker v. Shoemaker, 11 id., 80; Scrymser v. Phelps, 33 Hun, 474; Dales v. Ceas, 5 W. Dig., 400; Burr v. Mills, 21 Wend., 290, 292; Sloat v. McDougall, 30 St. Rep., 912; Butterworth v. Crawford, 46 N. Y., 349; Longendyke v. Anderson, 101 id., 625, 630; 1 St. Rep., 3; Buss v. Dyer, 125 Mass., 287; Mitchell v. Seipel, 53 Md., 251; Burns v. Gallagher, 62 id., 462; Brown v. Burkenmeyer, 9 Dana, 159; S. C., 33 Am. Dec. 541; McDonald v. Lindall, 3 Rawle, 492; Dillman v. Hoffman, 38 Wis., 575; O'Rorke v. Smith, 11 R. I., 264; Cooper v. Maupin, 35 Am. Dec. 464, note; Collins v. Prentice, 15 Conn., 39, S. C., 38 Am. Dec., 61; Wheeldon v. Burrows, L. R., 12 Ch. Div., 31; Crossley v. Lightowler, L. R., 2 Ch. App. Cas. 478; Suffield v. Brown, 4 De G., J. & S., 185; Russell v. Watts, L. R., 25 Ch. Div., 572; Brown v. Alabaster, 37 id., 504; Washburn on Easements, 104, 4th ed.; Gould on Waters, §§ 357, 362; 6 Am. & Eng. Encyc., 143; 4 R. S., 8th ed., 2461, § 1.

The trial court found that at the time of the making and exeeution of the said mortgage said mills were in operation, and there had been maintained a dam across said creek through said lot 43, which set the water back up the creek to lot 37.” It was not expressly found, however, that there was any apparent overflow at the time when the mortgage or the deed was given, or that the mortgagee or the grantee had any notice of the facts when either instrument was accepted. While the dam was high enough to overflow the forty-one acres when the pond was full, it does not appear, unless by implication, that any standing water was visible at the date of the mortgage, or that there was them any visible sign indicating “ to a person reasonably familiar with the subject, upon an inspection of the premises," that water had stood therein the past. Butterworth v. Crawford, 46 N. Y., 349. At the date ■of the deed the dam was not in use, as it had been partly swept away by a freshet. Both the mortgage and the deed were given at a season of the year when the water of streams in this state is ordinarily low. Thus it is by no means clear from the facts as found that at the date of either instrument upon which the plaintiff’s title is founded, there was any visible overflow, or apparent sign of previous overflow. As regularity is presumed, the one who claims that an error was committed must cause it to clearly appear, or effect will be given to the presumption by affirming the judgment appealed from. Tracey v. Altmyer, 46 N. Y., 598; Appleby v. Erie Co. Sav. Bank, 62 id., 12, 18.

But even if the findings, when liberally construed, show that the alleged easement was apparent and continuous, they utterly fail to oring it within the rule of strict necessity. It docs not appear that the water power of defendant would be materially diminished if he were not permitted to overflow the lands in. question. The maximum overflow affects but little more than two acres of plaintiff’s land, which, if the dam should be restored, would be rendered “ wet or spongy ” and unfit “ for agricultural purposes.”

The defendant claims that the capacity of his mill, when the-pond is full, is about fifty barrels of flour each day and that the-fall at the bulkhead is eleven feet, but it does not appear what, the capacity or fall would be with the overflow restricted to the-lands which he has the right to overflow. We are not informed! as to the fall of the stream as it flows through the land affected,, the grade of the banks, the depth of the water when the overflow is greatest, or the quantity of water that was accumulated or stored on the two acres by the old dam. For aught that appears the advantage of flowing such a small quantity of land was so trifling as to raise the presumption that the mortgagor willingly abandoned it when he omitted to mentipn or reserve it from the operation of the mortgage. The doctrine of implied reservation rests upon the presumed intention of the parties as it is gathered from the conveyance, interpreted in the light of the circumstances surrounding them when it was executed and with reference to-which, as existing facts, -they are supposed to have contracted. If it appeared that the mill could not be operated without overflowing the plaintiff’s land, it would be cogent if not conclusive proof of that strict necessity which does not create the easement, but is-simply evidence as to the intention of the parties. If, on the other hand, it appeared that owing to the slight declivity the accumulation of water was insignificant and that the mill property was worth substantially as much without the right in controversy as with it, there would be no proof of “ necessity ” and nothing upon which an implication in favor of the mortgagor or grantor could rest. Even the dimensions of the pond are not furnished us, and we cannot compare its extent with and without the two acres, although it appears to extend partly across one lot and entirely across another, before it reaches the lands of the plaintiff. When it is claimed that an easement exists by necessity, evidence of the necessity must be given. Stuyvesant v. Woodruff, 47 Am. Dec., 156; Gayetty v. Bethune, 14 Mass., 49, 55; Oliver v. Pitman 98 id., 50.

While absolute physical necessity need not be shown as in ,the case of land-locked premises, or the support of a wall, there must be a reasonable necessity, as distinguished from mere convenience. Root v. Wadhams, 107 N. Y., 384; 12 St. Rep., 30; Hollenbeck v. McDonald, 112 Mass., 250; Berry v. Brown, 6 Coldw., 98; Cooper v. Maupin, 35 Am. Dec., 464, note.

But in the case before us, where certainty is required, all is-conjecture. There is neither finding nor evidence that, in order to run the mill with substantially undiminished efficiency, it is-necessary to maintain the dam at such a height as would cause the water to flow over the plaintiff’s land.

Upon the facts as found, we think it would be unreasonable to hold that the mortgagor intended to reserve any right in the nature of an easement over the mortgaged premises, or that the mortgagee understood when he accepted the security that it was cut down in extent and reduced in value by the fiction of an implied reservation.

The judgment should be affirmed, with costs.

All concur, except Haight, Parker and Landon, JJ., dissenting.


text:
    The Port Jervis, Monticello & New York Railroad Company, App’lt, v. The New York, Lake Erie & Western Railroad Company, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    Railroad—Agreement as to use of terminal facilities—Statute of FRAUDS.
    By an arrangement between the predecessors of the parties a connection was to be made at Port Jervis, the Brie Company to furnish terminal facilities free of charge and to furnish rolling stock for a certain compensation per mile. There was no written agreement and it did not appear that any time was fixed for the duration of the contract. After a time certain charges were made for the terminal facilities and from time to time increased, but they were not enforced although entered in the monthly statements. Plaintiff being about to make connection with a competing road, defendant refused to furnish facilities and severed the connection with plaintiff. Held, that the evidence upon the trial justified the finding of the court that the right to use the track was an interest in real estate that could be granted by a written instrument only; that the permission to use the facilities was a temporary expedient to enable a new road to start its trains, and that having been revoked plaintiff could not maintain this action for damages for severing the connection and to compel its restoration.
    Appeal from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment entered upon the decision of the court after a trial at special term.
    Action to recover damages from the defendant for unlawfully severing the connection between its railroad track and that of the plaintiff at the village of Port Jervis;' to compel the defendant to restore such connection and to restrain further interference therewith.
    On the 2d of September, 1869, the Monticello & Port Jervis Railway Company was organized to construct and operate a railroad from Monticello, in the county of Sullivan, to Port Jervis, in the county of Orange, a distance of about twenty-three miles. The road thus projected was subsequently built, and on the 25th of August, 1875, passed with the rights of the original company, through the foreclosure of a mortgage, to a new corporation organized under the name of the Port Jervis & Monticello Railroad Company. In Hovember, 1886, the road and all its appurtenances was sold by a receiver and conveyed to the plaintiff, which was authorized by its charter to maintain and operate it and also to build an extension thereof.
    The defendant is a railroad corporation, operating a railroad extending from the city of New York to Lake Erie, passing through the village of Port Jervis. Said road was owned by the Erie Railroad Company from 1868 until 1875, when it passed into the hands of a receiver, and in 1878 it became the property of the defendant through the process of foreclosure.
    The Monticello & Port Jervis Railway Company built its own road but did not operate it, having arranged with the Erie Company to manage it and to furnish the rolling stock therefor, in consideration of a certain sum per mile. The track of the former company was connected with one of the tracks of the latter at a point on its land, about 2,200 feet easterly of its passenger station at Port Jervis. The frog for the connection was furnished by the Erie and has been kept in repair by that company and its successors. The trains, after leaving the Monticello road, passed upon the track of the Erie to its passenger and freight station and to its turn-table, where the engines were turned. They also remained in the Erie yard during the interval between their arrival and departure.
    This method of operation continued until the first of plaintiff’s predecessors disappeared through foreclosure proceedings and the second was organized. During this period no charge was made by the Erie Company for ,the use of its tracks, depot, yard or turn-table. When the Port Jervis & Monticello Company came into possession it provided its own rolling stock and operated the road itself. It was permitted by the receiver then in charge of the Erie to use the same facilities that had been extended to its predecessor, without charge, except for the use of the turn-table. When the defendant was organized and took possession of the Erie road, permission to use its tracks, yard and depot without charge was withdrawn, and the sum of fifty dollars per month was charged for such use and, although payment thereof was not exacted owing to the financial condition of the, plaintiff’s predecessor, it formed a part of the monthly statement of the accounts between the two companies. Certain payments, however, were made by the Port Jervis & Monticello Company to various agents of the defendant at Port Jervis, until the sale and reorganization in 1886, when the plaintiff took possession, and thereupon asked permission from the defendant to make use of the accustomed facilities. Permission was granted “ under an agreement, whereby the plaintiff was to pay the defendant the sum of $100 per month for such use thereof and was thereafter to make no payments to agents of the defendant for services in connection with the business at Port Jervis.” Payments were made at that rate until March, 1886. In the meantime the plaintiff had projected an extension of its road from a point about four miles from Port Jervis to Summitville, where it intended to connect with the Ontario & Western Railroad, which was a competitor of the defendant The plaintiff was notified by the defendant, prior to March 1, 1888, that after that date use of said facilities could nob be continued unless the plaintiff would pay $300 per month therefor. Mo payment has been made for such use since March, 1888, although the user has continued, except during a short interval, the same as before. June 21, 1888, after a second notice to discontinue bad been given, the defendant severed the connection between its track and .that of the plaintiff, but on July 20, 1888, the connection was restored pursuant to the terms of a temporary injunction, and since then until the trial of this action the plaintiff has used said facilities, for which it has paid nothing.
    The extension to Summitville has been completed and is substantially ready for operation. Mo written agreement was ever made for the use by the plaintiff or either of its predecessors of the tracks, yard,' depot or turn-table in question, with the defendant, or its predecessor.
    The trial judge, after finding the foregoing facts, in substance, found as conclusions of law, that the right to use the tracks, etc., was an interest in "real estate that could be granted by a written instrument only; that the permission to use said facilities, whether with or without charge, was a license revocable at the will of the defendant, and that such license having been lawfully revoked, the plaintiff could not maintain this action. The complaint was dismissed without costs, but the temporary injunction was,continued for sixty days to enable the plaintiff to move for a commission under the statute to fix the points and terms of connection between the two roads.
    The affirmance by the general term was placed upon the ground that the evidence, which was to some extent conflicting, abundantly sustained the decision of the trial court, and that even if it were conceded that an understanding was reached that terminal facilities should be accorded without charge, no time was specified during which that arrangement should continue.

      T. F. Bush, for app’lt; Lewis F. Carr, for resp’t.

       Affirming 32 St. Rep., 359.

   Vann, J.

The act under which both parties to this action, and their predecessors, .were organized, provides that every' corporation formed thereunder shall have power “to intersect, join and. unite its railroad with any other railroad before constructed, at any point on its route and upon the ground of such other railroad company, with the necessary turnouts, sidings and switches and other connections in furtherance of the objects of its connections.” It further provides that “ every company, whose railroad is or shall be hereafter intersected by any new railroad, shall unite with the owners of such new railroad in forming such intersections and connections and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the line or lines, the grade or grades, points and manner of such * * * connections, the same shall be ascertained and determined by commissioners to be appointed by the court.” Laws 1850, ch. 140, §28; 3 R. S. (8th ed.), 1751.

The learned counsel for the plaintiff claims that pursuant to this statute, “ upon the construction and completion of the railroad now owned and operated by the plaintiff, in the year 1871, a connection and intersection was made between the said road and the road now occupied and operated by the defendant, by a mutual agreement between the railroad companies then owning said roads respectively, and that it was no part of said agreement that any sum whatever should be paid for the said connection or intersection,’’ and he excepted to the refusal of the trial court to so find upon his request.

While it is not claimed that any written agreement was made, it is insisted that by a verbal arrangement, quite indefinite as to terms and details, the plaintiff’s predecessor acquired an irrevocable right to use, without compensation, the railroad track, depot, yard and turn-table now owned by the defendant at Port Jervis. Obviously such a right, if it exists, is an interest in real estate, and it can be created only by a written instrument, unless, as the plaintiff claims, the statute of frauds has no application to the subject. Apparently the statute applies, because such agreements are not expressly excepted from its operation. The word “ grant,” as used in that part of the railroad act already quoted, indicates the nature of the agreement to be made by the two corporations with reference to the intersection of their roads. No other woi-d suggesting the character of the arrangement is used. If the companies can agree, the established road is to “ grant the facilities aforesaid ” to the intersecting road. Moreover, one of the weightiest reasons to justify the enactment of the statute of frauds, to regulate agreements between persons, applies with increased force to agreements between corporations, because, being perpetual, they may survive all the witnesses to any transaction. It is unnecessary, however, to now decide this question, as the court found in effect that the agreement under consideration was not permanent, but tempbrary, and “ permissive only.” If this conclusion was justified by the evidence, it necessarily defeats a recovery by the plaintiff.

The testimony mainly relied upon by the plaintiff was that of Mr. Wheeler, the president of the original company during the first year of its existence, and Mr. Ludington, a director. About a month after the first road was organized these gentlemen called on Jay Gould and James Fisk, at that time president and vice-president respectively' of the Brie Company. Their action was not requested by the board of directors, but was purely voluntary.' Mr. Wheeler testified that they said they could not bond the town of Forrestburg unless they had certain pledges in relation to the connection with the Erie road; -that such connection, as stated, was “full terminal facilities, to run on their track, have the use of their switches, depot, turn-table and everything-necessary for passenger and freight business; ” that Mr.. Fisk, who “ did the principal talking, said they would do it; that we should have these facilities, and they would run the road until we were able to put on the rolling stock ourselves, at a very liberal charge; that we should have these facilities free of charge,” but repairs *were to be paid for. This was at the first interview, and at the second, about a month later, Fisk inquired about the prospect for tonnage and passenger traffic “ in case they helped us build the road,” and promised to send 'an expert to examine the quarries and timber land on the route. He sent a man accordingly, and afterward said he was satisfied, and that “ they would do what they could.” “ It was repeated at every interview I had with him that we should have the terminal facilities free of charge, and that they would run the road until we got ready to stock it ourselves, and that then we should have the terminal facilities free of charge.” On his cross-examination, Mr. Wheeler omitted the most important part of the various interviews as sworn to by him on his direct, although professing to state all that he could remember. He further testified that while no report was made to the board of directors, “the fact that we had obtained these assurances from the Erie Company was communicated to the directors of our company in the way of general conversations with them.” No other witness remembered any such agreement as Mr. Wheeler swore to. Mr. Ludington, who was with him at the first interview with Fisk and Gould, thought thaf it related to getting their consent to bond the town of Deerparlc, in which the Brie Company was a large taxpayer, and to obtaining a subscription towards building the road, and in fact such consent was given and a subscription of $10,000 made.

When asked what was said about terminal facilities, he answered : “ In all the interviews, which were quite numerous, it was assumed, rather than expressly agreed, understood; I cannot express in language how it was uriderstood; there was no written agreement; they understood our position, and we took the ground that we expected to enjoy these facilities as one of the reasons why the road should go to Port Jervis against such opposition as we had at home, as Judge Low and all of Middletown was against our going to Port Jervis, and I urged this as a reason why they should help us, and they assented to it ” When asked to state the substance of the language used, he said: “ The substance was we wanted to build a railroad, and without their aid we probably couldn’t build it If we had to build the railroad, and get our own terminal facilities, turn-table, machine shops, depot, etc., we could’nt build it That we would probably have to do if we went the other way, because the Oswego road wasn’t even graded at that time, and that was one reason why we desired to get a connection with them.” Nothing more definite upon the subject was stated by this witness.

Mr. Dimmick, who was secretary during the first year until September, 1869, and after that president until 1875, when the first receiver was' appointed, testified that although he had repeated interviews with Mr. Gould, and was present at all the meetings of the board of directors, he did not remember that anything was ever said in regard to terminal facilities at Port Jervis, and that he “ never heard any claim put forward on the part of the Monticello company that such arrangements had been made until this plaintiff was shut out of the Brie yard in 1888.”

Mr. Niven, the vice-president, and Mr. Goodale, a director of the original company daring the entire period of its practical existence, both testified to the same effect. It further appeared that it was the expectation at first to lease the new road to the Erie, and as early as July 13, 1869, a committee was appointed for that purpose, but it was finally arranged that it should be run by that company at a stated sum per mile. During the five years that this arrangement continued, the terminal facilities were of no practical importance to the Monticello Company, as the Erie was forced to furnish them for its own convenience. When the reorganization came in 1875, a charge for the turn-table was asserted on the one hand, and assented to on the other.

When the Erie Company was reorganized in 1878, a charge of fifty dollars per month was made for terminal facilities, and there was evidence to support a finding that this charge was assented to. When the plaintiff was organized in 1886, a charge of $100 per month for the use of the same facilities was made by the Erie, and for eighteen months was paid by the plaintiff without objection, but in 1888, when the charge was increased to $300, payment for the first month was made under protest, and since then no payment has been made. No action was ever taken by the board of directors of either company relating to the subject of terminal facilities at Port Jervis. Nothing appears upon the minutes kept by the respective secretaries indicating that the subject was ever reported to or considered by either board.

Much more evidence was given tending to support the theory of the defendant that the original arrangement was merely a temporary expedient to enable a new road to start its trains. The frequent changes in the amount charged also indicate its temporary character. It clearly was within the power of the two roads to enter into a temporary arrangement, and the probabilities support that view. The testimony of Mr. Wheeler is probable only on that theory. It can hardly be conceived that the Erie Company would consent to the use of so much of its property without compensation or conditions, unless it had the power to terminate the arrangement at any time. As long as friendly relations continued between the two roads, it did not charge what the use of the property was worth, but when the scope of the use was enlarged and a competing line was introduced into its yard and depot, the charge was increased. It had, however, asserted its right to charge, and had from time to time increased the amount, and the plaintiff, and its predecessors, had assented thereto for thirteen years, or during the entire period that the road was operated by them.= The position now taken by the plaintiff is inconsistent with that taken by the owners of its road from the time it was built.

We think that the evidence warranted the findings of the trial court so far as the question under consideration is concerned, and that the affirmance by the general term leaves us without power to review them.

The trial court found, as a fact, that about March, 1888, the plaintiff agreed to pay the defendant the sum of $300 per month for the use of said facilities after March, 1888 ; that the amount so agreed upon was the fair and reasonable value of such use and that “ under such agreement the plaintiff became bound to pay and the defendant became entitled to receive the sum of $300 per month for the use of said facilities so long as the plaintiff continued to use the same.” The court also found, as a conclusion of law, “ that the agreement of the plaintiff to pay the sum of $300 per month for the use of said facilities, was and is a valid and binding agreement and continues in force and effect so long as such facilities are used, and said agreement is in no wise modified or changed.” These findings were duly excepted to by the plaintiff. The judgment entered simply dismissed the complaint and vacated the temporary injunction.

Upon the argument the counsel for the defendant consented that said findings of fact and law relating to an agreement by the plaintiff to pay $300 per month for the use aforesaid might be stricken from the record and the judgment modified accordingly.

After examining all of the exceptions we think that the judgment should be modified so as to conform to the consent of counsel, as above stated, and as thus modified affirmed, without costs.

All concur.


author: Bradley, J.

text:
    Francis Lahey, App’lt, v. Gouverneur Kortright, Individually and as Trustee, et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    1. Will—Power of trustees under, to convey real estate—Express trust—Title.
    By the will of Nicholas G. Kortright, he provided that the residue of his property be divided by his executors into as many equal shares as should be necessary to give to his wife and children each two shares, they to convey one of such shares to each and to retain the residue in trust for the benefit of his wife and children and pay to each during their natural lives respectively the interest or income of one of such shares; that upon the death of any of them his or her share should be divided equally among his surviving children and the lawful issue of such as then may have died. By the eleventh clause he gave his executors “ full power and authority in regard to the investments of my said estate, and for this purpose they are authorized to sell and convey any or all of my real and personal estate, and after the payment of my debts as hereinbefore provided, to invest the proceeds in other real estate or in personal securities as they in their discretion may deem most for the interest of the parties interested in my estate.” The trustees named in the will having renounced, letters with the will annexed were issued to Sarah J. Kortright and Benj. Collins. The defendants Gouverneur and Lawrence Kortright were the only children, and the lands in question were set off by a judgment to the above administrators as trustees. Collins was afterwards released by the court and Lawrence appointed trustee of Gouverneur’s share, and defendants as such trustees caused to be made the sale from which the plaintiff seeks to be relieved. Held, that defendants possessed adequate power as trustees to convey the premises in question and that plaintiff was properly required by the judgment below to complete his purchase.
    2. Same.
    It was not intended that the power of sale should not survive the division of the estate, but it was intended to be applicable to the subject of the trust, which was to continue during the lives respectively of the beneficiaries, and would be taken by the trustees appointed in the place of those named in the will and who had renounced.

      Appeal from judgment entered on order of the general term of the superior court of the city of New York, affirming judgment entered upon decision of the court at special term in favor of the defendants.
    The purpose of the action was to relieve the plaintiff from a contract for the purchase of certain premises in the city of New York designated as lots Nos. 430, 432,434, on West Thirty-fourth street, and to recover ten per cent of the purchase money paid, also certain charges for auctioneer’s and salesroom fees and expenses of examining the title, upon the alleged ground that the defendants were unable to give a good title. The trial resulted in a judgment for the defendants and for specific performance by the plaintiff.

      JEseh Oowen and S. Jones, for app’lt; John M. Bowers, for resp’ts.

       Affirming 32 St. Rep., 112; see 22 St. Rep., 434.

   Bradley, J.

The subject of controversy has relation to the power of the defendants Kortright as trustees to sell and convey the premises in question. If they possessed adequate power in that respect the plaintiff was properly required by the judgment to complete the purchase, otherwise he was entitled to the relief sought by the action. The. disposition of the question is dependent somewhat and mainly upon the provisions of the will of Nicholas Gr. Kortright, which was admitted to probate in April, 1874. By it, after directing payment of his debts and funeral expenses and satisfaction of his bequest of household furniture, books and plate to his wife, the testator provided that the residue of his property, real and personal, should be equally divided between his wife and children, and directed his executors to divide such residue into as many equal shares as should be necessary to give to each two shares, to convey one of such equal shares to each of them, and to retain the residue of such equal shares in trust for the benefit of his wife and children, and pay to each of them during their natural lives respectively the interest or income of one of such shares.

He further directed that upon the death of any of those persons the portion of his or her share remaining in the hands of the executors should be divided equally among his surviving children and the lawful issue of such of his children as then may have died. And following these provisions were those of the eleventh clause, as follows: “I give my executors full power and authority hi regard to the investments of my said estate, and for this purpose they are authorized to sell and convey any or all of my real and personal estate, and after the payment of my. debts, as herein-before provided, to invest the proceeds in other real estate or in personal securities, as they in their discretion may deem most for the interest of the parties interested in my estate.” And he nominated and appointed two persons, Minturn and Blunt, executors and trustees. They renounced and letters of administration, with will annexed, were issued to Sarah J. Kortright, the.widow, and Benjamin Collins. Grouverneur and Lawrence M. Kortright were the only children of the testator, and with the widow constituted the beneficiaries of the residue as mentioned in the will. By judgment in an action for partition, and for the appointment of a trustee in place of those who had so renounced, Benjamin Collins was appointed such trustee, and lot 434 West Thirty-fourth street, with other land, was set off to Collins as trustee of Lawrence M. Kortright, and lots 430 and 432 West Thirty-fourth .street, with other land, were set off to him as trustee of Gouvermeur Kortright. Several years afterwards, upon petition of Collins, in which the beneficiaries joined, he was by the court permitted to surrender the trusts and was released and discharged therefrom. And subsequently Lawrence M. was appointed trustee of the share of his brother, Gkmverneur Kortright, and the latter was appointed trustee of the respective shares of the widow and Lawrence M. Kortright, and conveyance was made to them as such trustees by Collins, their predecessor in the trust, of the lands not disposed of while he was trustee. These proceedings were regularly and duly had to invest the new trustees with the title to the lands which were the subject of the trust, and embraced in them were lots 430, 432 and 434 West Thirty-fourth street, the lands in question. And the defendants, as such trustees, caused to be made the sale from which the plaintiff seeks to be relieved. He is entitled to such relief unless the trustees are able, by their conveyance, to give him a marketable title, which is a title free from reasonable doubt Fleming v. Burnham, 100 N. Y., 1; Irving v. Campbell, 121 id., 353; 31 St. Rep., 307; Kilpatrick v. Barron, 125 N. Y., 751; 36 St. Rep., 15.

The will from which the power of the trustees is derived created an express trust within the meaning of the statute, as it provided for the receipt by them of the rents and profits or incomo •of lands and the payment of the same over to the beneficiaries •during their lives. 1 R. S., 728, § 55. And for that purpose the trustees took title to the lands embraced within the trust. Id., 729, § 60; Brewster v. Striker, 2 N. Y., 19; Leggett v. Perkins, id., 297.

This was the situation of the shares in the lands set apart for that purpose. The trustee Collins was succeeded in the title by the new trustees to the lands so held by him at the time he relinquished the trust.

It is, however, insisted on the part of the plaintiff that neither the trustee Collins nor his. successors in that relation took any power of sale under the will. The determination of ■this question depends upon the construction and application of the provisions of the eleventh clause. It is forcibly argued by ■the learned counsel for the plaintiff, that the power of sale given "by such clause is not attached to the trust before mentioned, and has no relation to its execution, but that it was intended as a power to the executors as such, to be executed only prior to the division of the estate into the shares provided for, and, as such, was one of personal confidence, and could be exercised by none other than the persons designated as executors by the testator; and that when they failed to assume such relation the power became inoperative. It would be less difficult to adopt the view that this was a naked power if it were not for the trust created by the preceding provision of the will. But the power of sale given by this-provision does not embrace within its terms, as expressed,- any purpose necessarily executorial; and for the dischage of their duties as executors no reason appears for the exercise by them of the power of sale for the purposes of investment of the proceeds. It is true that the expression in the eleventh clause in reference to the payment of debts of the testator has relation to the duties of the executors, and the power of sale is in terms broad enough to-cover his entire estate. But it did not purport to have been created for use in making the division provided for of the estate. No-power was given the executors as such to withhold distribution of the personal property (if any should remain after payment of the debts) or to delay the division of the real estate or to withhold' from the beneficiaries the shares which they were entitled to take: and appropriate to their own use.

It therefore does not appear to have been intended that the power of sale should not survive the division of the estate. The purpose as given for its execution had relation -to the investment of the proceeds in other real estate or personal securities. While a mere power of sale is discretionary and does not survive the donee of the power, it is otherwise when the power is coupled with a trust. Then it is taken by the trustees, and through the-court of equity may • be transmitted to their successors in the-trust. In the present cas$ the power of sale, independent of and disconnected with the trust to receive and apply the rents and profits, would not have survived the renunciation by the persons, named as executors. But by reference to the provisions of the will, as well that creating the power of sale as other portions, to ascertain its applicability contemplated by the testator, it seems that this power in its practical and essential purpose was intended to be applicable to the subject of the trust, which was to continue during the lives respectively of the beneficiaries. And being thus annexed to such trust in aid of its execution it would betaken by the trustees. In that view of its relation it is unnecessary to further pursue inquiry into the character of the power. Leggett v. Hunter, 19 N. Y., 445.

The cases cited upon the contention that this power was discretionary and could not be taken by the substituted trustees,, do not seem to us to have any necessary application to the present case.

In Coleman v. Beach, 97 N. Y., 545, there was no express trust,, and the execution of the power was made expressly dependent, upon the will of the grantee. And in Matter of Bierbaum, 40 Hun, 504; 1 St. Bep., 470, there was also no such trust, but. merely a naked power, which was necessarily discretionary. And the same may be said of Sweeney v. Warren, 127 N. Y., 426; 40 St. Rep., 304, and it was there held that at the time the executor assumed to execute the power of sale there was no legitimate-purpose to be accomplished by its execution. In Mott v. Ackerman, 92 N. Y., 539, the question finally arose whether a conveyance could be made by the administrator with the will annexed, ■and the court held it could, as the power of sale had been given .to the executors for the purpose of paying debts and legacies and was imperative.

In that case there was no trust other than that which came within the powers of the executors as such. In the case at bar, -the trust created by the will to receive and apply the rents and profits of the land had, in the view taken, an important bearing upon the construction of the power of sale for reinvestment and its purpose. It could be seen that the title to the property subject to the trust would very likely remain in the trustees for many years, and during that time they were charged with an active ■duty in respect to it. It is quite reasonable to assume on the question of construction that it was in the contemplation of the testator that occasion might within that time, in view of the interests of the present and ultimate beneficiaries, arise for the sale of the specific real estate, or some of it, and the investment of the proceeds in other property.

This view of the power of sale, for the purpose of investment in other property, is consistent with the execution of the trust -during the lives of those who were to take the income, and seems ■essential to effectuate the intent of the testator in creating such power. And it appears by the record here that the power has ■been deemed effectual, and sales accordingly have been made by ■the trustees. One such sale has the support of an adjudication. Kortright v Storminger, 49 Hun, 249; 16 St. Rep., 925.

It is further urged that although the power of sale may have been by the will vested in the trustees there appointed, if they liad assumed the trust, it was not conferred upon the defendant trustees, because (1) their appointment was made by the court in the exercise of its general equity powers in that respect, and not . pursuant to the statute upon the subject; and, (2), that the power of sale was not included in that conferred upon them by the orders of appointment.

By the judgment of the court, Collins was appointed trustee under the will, and as such trustee invested with power and authority to execute the trusts created by it. And upon his petition to be relieved from the trust, he was, by order of the court, permitted to surrender his trust and was discharged from liability, etc. This was a resignation within the meaning of the statute pursuant to which the defendants were appointed as new trustees, 1 R. S., 731, § 71; and by the terms of the orders appointing them they respectively were • appointed trustees under the will to hold the shares set apart by the commissioners for the benefit of the beneficiaries, and to hold the same in trust for them. The court did not by these orders assume to limit in terms the power of the new trustees, or definitely define the manner they should execute the trust, And by reference to the entire record of the proceedings in that behalf it seems that the purpose •was to substitute them as successors to Collins in the trust created by the will,- from which through the action of the court in placing them in that relation they derived their powers. Farrar v. McCue, 89 N. Y., 144; Royce v. Adams, 123 id., 402; 33 St. Rep., 622; Nugent v. Cloon, 117 Mass., 219. A different question would be presented in a case where the powers of the trustees are derived from the. general equity jurisdiction of the court In respect to the action for partition all the parties essential to accomplish it. were before the court. Mead v. Mitchell, 17 N. Y., 210; Brevoort v. Brevoort, 70 id., 136. At all events the persons who took the other half were parties to the partition action, and cannot challenge the title of the trustees to the real estate which was made subject to the trust.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    James H. Wells, Trustee, Resp’t, v. Francis Higgins, Rec’r, App’lt.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    1. Receiver—Liability for rent.
    In 1871, one McCunn hired certain lands for twenty-one years, covenanting to pay rent semi-annually, together with taxes, etc. In 1876, one O’Donohue was appointed receiver in an action to construe the will of McCunn, and authorized to lease the lands and tenements “ whereof he is. hereby appointed receiver,” and to pay taxes, etc. In 1877, in said action and another to declare void the devise of the real estate and to partition the same, defendant was appointed receiver in his stead “to receive the rents and profits of the estate, freehold and leasehold, and to collect and get in the outstanding personal estate of McCunn, and to “have and possess the same powers and be subject to the same duties and obligations ” as his predecessor. Defendant leased the premises to one F, and paid plaintiff the amount of the rent to September 1, 1878. In this action to recover thb rent reserved and certain taxes to be paid by the tenant, Held, that the title to the demised term passed to and was vested in defendant as receiver, and that he was liable for the rent accruing from September 1, 1878, to September 1, 1879.
    2. Trial—Exception.
    After counsel have tried to limit a verdict to be directed by insisting that it should be confined to rents accruing from March 1, 1879, and taxes-for that year, when the plaintiff is entitled to recover rent from September 1, 1878, and taxes for 1878 and 1879, and the. court in directing a verdict includes the taxes for 1876 and 1877, a general exception does not enable this court to decide that the taxes last named should not have been included.
    Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment entered on a verdict rendered under the direction of the court at circuit.
    This was an action by a lessor against the receiver of the estate of a deceased lessee to recover the • ent reserved and certain taxes,, which, by the terms of the lease, were to be paid by the tenant.
    By a lease dated February 15, 1871, the trustee of one Clement. Moore demised to John H. McCunn certain lands in the city 'of Hew York for the term of twenty-one years, reserving an annual rent of $250, payable in semi-annual payments on the first days, of March and September.. The lessee covenanted to pay the charges for Croton water and all taxes, assessments and duties imposed during the term by federal, state or municipal authority.
    March 28, 1876, in an action brought to construe the will of said McCunn, and to remove the executors and trustees nominated, therein, one O’Donohue was appointed receiver of the rents and profits of the real estate, freehold and leasehold, and of the personal property of said testator. The tenants were directed to at-torn to said receiver, and the executors to deliver to him all the estate, real, personal and mixed, lately belonging to said McCunn. The receiver was authorized to lease the lands and tenements, “whereof he is hereby appointed receiver,” and to pay the taxes, assessments and other lawful charges to which the premises should from time to time be subject
    January 19, 1877, by an order made in said action and in another brought to declare void the devise of the real estate of said McCunn and to partition the same, said O’Donohue was removed at his own request and the defendant was appointed receiver in his place and stead “ to receive the rents and profits of the estate, freehold and leasehold, * * * and to collect and get in the-outstanding personal estate ” of said McCunn, with directions to tenants to attorn, etc. The order further provided that the defendant, as such receiver, should “have and possess the same powers, and be subject to the same duties and obligations” as were conferred or devolved upon his predecessor. The defendant, by his answer, denied that he became invested by said appointment with the title to the “real or leasehold estate,” but he admitted that in May, 1879, he leased the premises in question to one Federlein, and also that he had “paid to the plaintiff the-amount of the rent of the said premises to and including September 1, 1878.”
    No rent was paid after the date last named, and on the 7th of November, 1879, summary proceedings were instituted to remove-the defendant as tenant, and said Federlein as under tenant, from the possession of the premises, based on an affidavit alleging, and a summons reciting, that the defendazit entez’ed into possession and sub-let, and that the defendant as tenant, and said Federlein as under tenant, had made default in the payment of the rent, and as such held over and continued in possession. No answering affidavit was filed, but on the 12th of November, 1879, as the record of the district court shows, the tenant and under teziant appeared by separate attorneys, and by consent judgment of dispossession was duly rendered “in favor of said landlord,” and against the “said tenant and all other persons.” A warrant was issued on the 19th, and returned the same day by the marshal, with a certificate that he had put the landlord in full possession of the premises in question.

      Samuel Jones, for app’lt; Oharles JS. Souther, for resp’t.

       Affirming 24 St. Rep., 378.

   Vann, J.

The defendant contends that he is not liable in this action because there was privity neither of contract nor estate between himself and the plaintiff. There was no privity of contract, but we think that the facts appearing in the foregoing statement conclusively show that the defendant was in possession of the premises in question, and, presumptively, that he was .in pas~ ■session from March 3, 1877, when his bond as receiver was filed. If he did not then take possession, it was incumbent on him to ■ show it. He admitted that he was appointed receiver February .28, 1877; that he subsequently qualified, and that he paid the amount of the rent * * * to and including September 1, 1878. ” This admission fairly involves the proposition that he paid the rent that fell due according to the terms of the lease from the time that he became receiver until the date named. Whether •the defendant was appointed receiver of the real estate of which the testator died seized, or simply of the rents and profits thereof, is not here important, because he was appointed receiver of the personal estate, and, according to the Revised Statutes, leases for years go to the executors and administrators to be applied and distributed as part of the personal estate of the testator or intestate,” and are required to be “included in the inventory -thereof.” 4 R. S. (8th ed.), 2556; Pugsley v. Aikin, 11 N. Y., 494.

We think that the title to the demised term passed to and was vested in the defendant as receiver, and that he is therefore liable for the rent accruing from September 1, 1878, to and including September 1, 1879. Woodruff v Erie R. R. Co., 93 N. Y., 609; Frank v. N. Y., L. E. & W. R. R. Co., 122 id., 197; 33 St. Rep., 235.

Upon the trial a tax bill was received in evidence for the taxes of 1876, 1877 and 1878, confirmed, respectively, September 14, 1876, October 9, 1877, and October 11, 1878. It also included the Croton water rent for 1876 and 1877, and was receipted by the proper officer as having been paid January 30, 1880. An■other tax bill, which included the taxes of 1879, confirmed October 17 of that year, and 'the Croton water charges for 1878, was also read in evidence. Both were objected to as irrelevant and immaterial, but neither as incompetent Upon the close of the ■evidence the counsel for defendant, after his motion to dismiss the complaint had been denied, asked the court to direct the jury that their verdict must be limited to the rent from May 1, 1879, to November'!, 1879, and to the taxes of 1879, with lawful interest upon each. This motion was denied, and thereupon the •court was asked to limit the verdict to .the rent from March 1, 1879, to November 19, 1879, and to the taxes for 1879, besides interest The court denied this motion also, and directed a verdict for the plaintiff “ for the sum of $858.57, being for taxes, ,$395.49; interest thereon, $123.55, together, $519.04; and for rent, $250; interest thereon, $89.53, together, $339.53, to which ■direction counsel for the defendant duly excepted."

While we are asked to review none of these rulings, we have -considered them in order to determine whether the defendant -should be relieved from the payment of the taxes that accrued prior to his appointment as receiver. The objection to the ta-x bills was not to the competency of the evidence, but to its materiality, and as all of one was material and a part of ■ the other, the objection, as made, was properly overruled. If the defendant wished to exclude the taxes that became due before he was appointed receiver, his objection should have been more specific and addressed to that part of the first bill that embraced those items. The same criticism applies to the motions to limit the verdict, as. neither time did he include all the rent that fell due, or the taxes that became payable, while he held the title to the lease and was in possession of the premises. The limitation applied for was too sweeping, and the application was properly denied for that reason.

The exception to the direction for a verdict was general and, if-we have reasoned correctly thus far, was too broad, as it did notdmng before the mind of the trial judge or of the opposing counsel the point that the amount included for taxes was too large, because it embraced items accruing prior to March 3, 1877. If the exception had been to so much of the direction as covered the old taxes, the point could have been understood and an opportunity would have been afforded for correction, if the court so-desired, or the opposing counsel wished to consent to a modification. Sterrett v. Third Nat. Bank, 122 N. Y., 659, 662; 34 St. Rep., 241.

"Where a portion of a charge excepted to is correct in part and no qualification is suggested, a general exception cannot be sustained. Adams v. Irving Nat. Bank, 116 N. Y., 606; 27 St. Rep., 733; Smedis v. B. & R. R. R. R. Co., 88 N. Y., 13; Donovan v. Vandemark, id., 668.

So, as we think, after counsel have tried to limit a verdict, about to be directed by insisting that it should be confined to-rents accruing from March 1, 1879, and taxes for that year, when the plaintiff is entitled to recover rent from September 1, 1878, and taxes for 1878 and 1879, and the court, in directing a verdict, includes the taxes for 1876 and 1877, a general exception does-not enable this court to decide that the taxes last named should not have been included. Tuers v. Tuers, 100 N. Y., 196.

It is unnecessary, therefore, for us to decide whether the defendant is liable as the successor of O’Donohue upon the theory that the receivership was continuous.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Cornelia Gilman, App’lt, v. Augustus Prentice et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    Judgment—Referee—Code Civ. Pro., § 1032—Findings of fact.
    On the trial of an action defendant moved to dismiss the complaint before any evidence was taken, and again after plaintiff rested. The referee made no ruling in either instance, reserving his decision. Defendant introduced evidence and plaintiff called witnesses in rebuttal, and after an amendment to the complaint the case was summed up and submitted to-the referee, who subsequently made a report dismissing the complaint, which did not contain any findings of fact. Held, that the judgment could not be reviewed because of such failure of the referee to state separately the facts found and the conclusions of law.
    (Landon, J., dissents.)

      Appeal from a judgment of the general term of the superior court of the city of New York, entered on an order affirming a judgment entered on the report of a referee dismissing plaintiff’s complaint

      Charles M Hughes, for app’lt; Charles J. Hardy, for resp’ts.

       Affirming 28 St. Rep., 587.

   Parker, J.

Before any evidence was taken, the defendant Tucker moved to dismiss the complaint. The motion was not passed upon, the referee reserving his decision.

After the plaintiff rested, the defendant again made a motion to dismiss the complaint, but no ruling was made, the referee again reserving decision.

The defendants thereafter introduced evidence both oral and documentary in support of their position and" rested. The motion to dismiss the complaint was not then, nor thereafter renewed.

The plaintiff called several witnesses in rebuttal, and was permitted to amend his complaint on terms, after which the testimony was closed, and the “ case summed up and submitted ” to the referee.

Subsequently the referee made a report dismissing the complaint, which report did not contain any findings of fact. Nor did he at any time make, nor was he requested to make any such findings, the plaintiff contenting herself by filing exceptions to the report

The question is therefore presented, whether the judgment can be reviewed, because of the failure of the referee to comply with § 1022 of the Code of Civil Procedure, which provides that “ the ■decision of the court or the report of the referee, upon the trial of the whole issue of fact, must state separately the facts found and the conclusion of law.”

This neglect of the referee, if neglect it was, could have been remedied at the instance of the plaintiff in the manner provided by the Code, but no attempt was made in that direction. Indeed the plaintiff did not even submit to the referee a written statement of the facts which she deemed established by the testimony.

We held in Wood v. Lary, 124 N. Y., 83; 35 St. Rep., 53, that in every case heard by a referee, if any evidence be presented, a decision stating separately the facts found and the conclusions of law based thereon must be made, otherwise the judgment will not be reviewed. Place v. Hayward, 117 N. Y., 487; 27 St. Rep., 710, does not oppose, but supports such determination. In that •case the defendant’s counsel, at the close of plaintiff’s evidence, without announcing that he had rested his case, asked for and obtained a dismissal of the complaint. Afterwards the referee made his report containing findings of fact and of law. It was held that what the referee did was to nonsuit the plaintiffs, and, therefore, he should have made no findings of fact except such as would justify a nonsuit. Judge Earl, speaking for the court, said: 11 Under the Code the referee was required to make findings of fact and of law after granting the nonsuit, but he had no right to make any findings of fact depending upon disputed or inconclu.sive evidence.” That it was the view of the court, that in case of ~a nonsuit before a referee the facts found must be in accord with •the testimony most strongly supporting the plaintiff’s contention, is evidenced not only by the discussion of facts with which the opinion abounds, but also by the sentence following the one last ■quoted, “therefore, to maintain this judgment, the defendant is bound to show that there was no disputed question of fact which, upon a jury trial, the court would have been required to submit to the jury, and that upon the undisputed evidence he was entitled to judgment." In Forbes v. Chichester, 125 N. Y., 769; 36 St. Rep., 248, the referee made a report dismissing the complaint, to which the plaintiff’s counsel excepted, and then, Judge Earl remarks in his opinion, the referee “ made formal findings of fact and law as he should have done, and proper exceptions were taken to them by plaintiff’s counsel.”

It seems to be settled, therefore, that findings of fact are neces.sary, even when the complaint is dismissed at such a stage of the hearing as to entitle it to be treated as a nonsuit.

It is certainly not the less important that the statutory requirement in such respect should be insisted upon when the testimony is all in, the arguments of counsel made, and time for deliberation by the court or referee taken.

In such a case this court held, in Bridger v. Weeks, 30 N. Y., 328, that the judgment would not be reviewed, and so far as we have observed the position then taken has been steadily maintained.

The appeal should be dismissed.

All concur, except Bradley, J., not voting, and Landon, J., -dissenting.