author: Mayham, J. Learned, P. J.

text:
    Wallace M. Kilbourne, Sup’r, Resp’t, v. The Board of Supervisors of Sullivan Co., App’lt

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

      1. Town bonds—Sinking fund—Laws 1869, chap. 907; Laws 1874, chap. 269.
    The act in relation to the application of railroad taxes to the payment of town bonds, Laws 1869, chap 907, was not repealed by chap. 269, Laws 1874, directing that the taxes collected of the N. Y. & O. M. R. R. Co. shall be paid to the railroad commissioners of the towns. So far as the state tax collected from that road is concerned it is still required to be invested under the act of 1869.
    2. Same—Limitation.
    There cannot be said to have been a misappropriation so as to set the statute of limitations running so long as the county treasurer has in his hands moneys raised in the year out of which he could have made the required investment..
    8. Same.
    An action to compel the levying and collection of an amount equal to that misappropriated by the treasurer, and its payment to him for investment pursuant to the statute, is an equitable one, and the judgment may include moneys misappropriated after the commencement of the action, and before judgment.
    4. Same—“ School taxes."
    The words “school and road taxes," as used in the statute, relate to local taxes for school and road purposes, and not to the portion of the state tax intended for the support and maintenance of the common schools_
    6. Same—Bab.
    The fact that plaintiff applied to the board to levy and collect such tax, and that it refused, is no bar to an action to compel it to do so. Plaintiff is not limited to his remedy by mandamus.

    Appeal from judgment in favor of plaintiff entered on trial before the court without a jury.
    The following is the opinion below:
   Mayham, J.

The above entitled actions grew out of a similar state of facts involving the same legal questions, and may properly be considered together, as the decision of one disposes of the legal questions raised in all the others.

The actions are to recover money in each case collected by taxation on the New York & Oswego Midland Railroad Company and its successor the New York, Ontario & Western R. R. Co. in said towns, respectively, which was used by the county treasurer for the use and benefit of the company, which it is claimed by the plaintiff belonged to the individual towns.

The case shows that in each of the years 1874 to 1887, both inclusive, the assessors of each of the towns in Sullivan county made, completed, verified and delivered to the supervisor of their town an assessment roll of the real and personal property of their respective towns as required by statute, including the property •of the Mew York & Oswego Midland Railroad in the town through which it passed, which were the towns mentioned respectively in the above entitled actions, and that such assessment rolls formed the basis of the equalization of assessments made by the board of supervisors in each of said years.

Upon the basis of such assessment and equalization the board ■of supervisors, at its annual meeting during the period above stated, levied such state taxes as were apportioned to the county ratably among the several towns thereof, including those for which the above entitled actions are prosecuted.

The money raised from such levy by the tax upon the aforesaid railroad, with all the other taxes collected in said towns, were by •the several collectors thereof, as directed by the warrant issued to them by the board of supervisors, paid to the various persons and -officers therein designated.

The money raised for the support of roads and bridges to the commissioner of highways, the money to defray town expenses to the supervisor, the money to pay the interest on town bonds issued in aid of construction of such railroad, to the railroad commissioners, and the money raised for state and county tax and for town poor to the county treasurer of Sullivan county, and all the tax levied upon and collected from the said railroad in each of the said towns in any of the years above specified were paid over as above set forth. Each of the towns was duly represented each year in the board of supervisors of the county and took part in the equalization of the assessments of the county and in levying the tax upon the property of the towns, including the •railroad in the towns through which the railroad ran, which were bonded in aid of its construction. Mo proceedings were commenced or prosecuted against the county treasurer to compel him to comply with the provisions of § 4 of chapter 907 of Laws of 1869, or the act amendatory thereof. Chapter 296 of Laws of 1874 was put in evidence.

It is admitted that the Mew York & Oswego Midland Railroad was exempted from taxation prior to the passage of chapter 296 of Laws of 1874, and that after that act was passed it was assessed.

At the annual meeting of the board of supervisors of Sullivan county in Movember, 1888, the several towns above named presented a statement of facts to said board, and demanded in behalf of such towns that the board ascertain the amount of state tax so called collected from the railroad in the several towns respectively, and used by the county in payment of state tax, and that the board levy said amount upon the taxable property of the county, with interest from the time of using the same by the county, and collect the amount thereof and pay the same into the county treasury, to the credit of the respective towns in proportion to the amount collected from the railroad in said towns to the use and benefit of the same, which the board refused to do. The plaintiffs in these actions respectively demand the state tax collected in their respective towns on the railroad, from 1874 to 1887 inclusive, and taken and used by the county of Sullivan in the payment of its proportion of the state tax, the same as money collected from other taxable property of said county, be accounted for by said county and paid to the county treasurer for the use of such towns, for the purpose of purchasing or canceling its outstanding bonds of the town, issued in aid. of the construction of the railroad, or for investment as a sinking fund for that purpose.

By chap. 898 of the Laws of 1866, the towns in several counties along the line of the Mew York & Oswego Midland railroad, including the towns of Sullivan county, were authorized, upon condition therein specified, to subscribe to the capital stock of that railroad and to issue their bonds in payment for, or to meet the obligation incurred under such subscription.

Section 16 of that act exempted the railroad corporation from taxation for state, county, town or municipal purposes, until a single-track of such road was completed and in operation for a period not. exceeding ten (10) years, provided said railroad did not consolidate with any other railroad not wholly or partially constructed.

Section 4 of chap. 907 of the Laws of 1869 provides that “ All taxes except school and road taxes collected for the next thirty (30) years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, village or city lies, and said money so paid over, including interest collected on bonds held by said treasurer as a sinking fund, shall be invested by said treasurer in state, city, town, county or village-bonds issued pursuant to law of this state on United States bonds, within sixty days after receiving thesame, and shall be held by said county treasurer as a sinking fund for the redemption and payment, of the bonds issued or to be issued by said town, village or city to aid in the construction of said railroad.”

This act was amended by chap. 283 of the Laws of 1871, and as so amended was held to apply to all towns which have been bonded in aid of railroads, and is therefore applicable to the towns-in question in these actions, and is not limited to railroads constructed under the act of 1869. Matter of Clark v. Sheldon, 106 N. Y., 104; 8 St. Rep., 537. The law which exempted the real and personal property of this railroad was repealed by chap. 296-of the Laws of 1874.

This repealing act was entitled: “ An act to subject the real and personal property of the Mew York & Oswego Midland Railroad Company to taxation, and to appropriate the amount of the-county tax thereon to certain towns, to be applied towards the-payment of the interest or principal on certain town bonds.”

The first section of this act repeals all laws so far as they exempt real or personal property of the ¡New York & Oswego Midland Railroad Company from taxation.

The second section in express terms provides that all moneys collected upon real and personal property of said corporation for county taxes in any of the towns or municipalities by which bonds have been issued in aid of the construction of the ¡New York & Oswego Midland Railroad are appropriated to such towns or municipalities, respectively, and ■ directed the same to be paid over to the railroad commissioners of such town or municipality appointed under the authority of the act to facilitate the construction of said road, passed April 5, 1866.

It is insisted by the plaintiff that the act of 1874 above referred to repealed chap. 398 of the Laws of 1866 in so far as that act exempted this railroad from taxation, and modified chap. 907 of the Laws of 1869, by directing that the county tax on this railroad should be paid to the commissioners for the use of the town in liquidation or extinguishment of the bonds, leaving the state tax when collected to be paid over to the county treasurer, as provided by § 4 of chap. 907 of Laws of 1869, and that that act with the modifications suggested is still in force.

On the part of the defendant, it is insisted that chap. 907 of the Laws of 1869 is repealed by implication by chap. 296 of the Laws of 1874; that their provisions aré so inconsistent with each other that they cannot stand together.

In determining this question, it is necessary to examine the provisions of both, and thus determine to what extent the latter is repugnant to the former, and to that extent only will the former be deemed repealed, and in making that investigation we must keep in view the elementary rule of construction, that repeals by implication are not favored in law; and at the same time give effect to that other equally well recognized rule of construction, that when a later statute, not purporting to amend a former one upon the same subject, not repugnant to the former one, in all of its provisions covers the whole subject, and was plainly intended to furnish the whole law thereon, the former statute will be held to be repealed by necessary implication, although the later statute contains no repealing clause. Daniel R. Lyddy v. Long Island City, 104 N. Y., 218; 5 St. Rep., 665.

By the act of 1869 all taxes, except school and road taxes, shall be paid over to the county treasurer, and the money so paid over shall be invested by him in a manner provided in the act to meet the liability on the bonds of the town at maturity.

This act was clearly broad enough to cover taxes levied as state and county taxes, and by its terms, but for the provisions of § 16 of the Laws of 1866, exempting such road from taxation, the town would be entitled to credit for all state and county tax collected from such railroad. When the limit fixed in that section expired, or when chap. 269 of the Laws of 1874 took effect and the immunity of the railroad from taxation was taken away by § 1 of that act, the right of the town to the tax became again fixed under the provisions of § 4 of the act of 1869.

Now, if we could stop with that section, no question, it would seem, could arise as to the right of the town to the benefit of the state and county tax.

Does section second (2), which relates only to county tax, affect, the right of the town to the state tax under the act of 1869 ? I think not Section 1 of the act of 1874 deals exclusively with questions of the railroad exemption from tax, and in that respect, relates to the county tax, which is affected by that section, but also to the state tax, which is not referred to or affected in terms by that section, and unless we import into that section something which is not found in it, and which is not necessary to give it effect, it can have no application to the state tax.

The act of 1874 cannot, therefore, I think, be construed to-repeal any part of the act of 1869, now under consideration. That act is general and applies to all bonded towns in the state.

The act of 1874 is confined strictly to the Midland towns intersected by that railroad, and all the provisions of the act of 1869 must remain in force as to all railroads of the state which issued bonds under it to other railroads.

All that was effected by the act of 1874 was the repeal of the exemption of the Midland Eailroad from taxation and a.modification of existing laws, so as to allow the county tax to be appropriated at once by the railroad commissioners to the payment of the interest on the town bonds, leaving in full force the provisions of the act of 1869 so far as it embraced or related to state tax, and leaving that tax to be invested under that act as a sinking fund for the ultimate redemption of such bonds.

This construction does not seem repugnant to the letter or spirit of the act of 1874, but is in harmony with the general scope of the legislation upon the subject, which seems to be to-give the towns the benefit of the tax which was levied upon railroad property within their limits when such property was created! or brought into existence by the aid of the indebtedness of such towns. Bridges, supervisor, v. The Board of Supervisors, 92 N. Y., 571. These two statutes may be read together, and effect given to-both, without any impairment of the provisions of either. That, being so, they must be permitted to stand together and their provisions enforced.

In People v. Catholic Protectory, 101 N. Y., 200, the court in discussing this general subject, as applied to that case, says:: “ The enactments can be read together, and easily stand together without the least clash or conflict, and when that can be done-our duty is to. reconcile them and give to each its operative-force.”

Two statutes shall stand together, and both have effect, if possible, for the law does not favor repeals by implication, and all acts in pari materia should be taken together as if they were-one law.

Laws in pari materia must be construed as if they formed part of the same statute, although enacted at different times; such laws-are to be construed together as forming a united system and as-one statute.

John F. Anderson (Lewis e. Carr, of counsel), for app’lt; T. F. Bush, for resp’t.

I am, therefore, of the opinion that the act of 1869 is in force as to the state tax, and that the plaintiff in each case is entitled to recover in these actions the state tax paid to and used by the county, with interest. All the other questions raised by the defendant have been settled by recent decisions adverse to the claims of the defendant and in favor of the plaintiff’s right to recover. Clark v. Sheldon, 106 N. Y., 104; 8 St. Rep., 537 ; Hand v. Supervisors of Columbia Co., 31 Hun, 531; Strough v. Supervisors of Jefferson Co., 50 Hun, 54; 23 St. Rep., 940, affirmed by court of appeals, see MSS. opinion of Andrews, J., covering several questions; Bridges v. Supervisors of Sullivan Co., 92 N. Y., 571. This last case seems to hold that as that action was brought to recover the county tax, under the provisions of § 2 of chapter 294 of the Laws of 1874, the state tax assessed and collected of the railroad could not be recovered in that action. But it does not follow from that, that the state tax which is clearly embraced in the words “ all taxes ” in § 4 of chap. 907 of Laws of 1869, cannot be recovered in an action for that purpose when by the statute the tax is expressly given to the town, or for its use.

As was said in Bridges v. Supervisors, “ The county thus has acquired the money of the town and has no right to withhold it.”

Nor do I think this is a case where the plaintiffs are concluded by the submission of their claim to the board of supervisors and its rejection by the board. The board did not pass upon and allow a part, and reject a part, in such a manner as to bind the defendant as a judicial determination. It is not such a case as within the authorities the plaintiff would be concluded by the acts of the defendant in rejecting their claims.

The plaintiffs are entitled to judgment.

Learned, P. J.

The learned justice before whom this cause was tried wrote a very full and careful opinion. We adopt his opinion and shall only examine a few points specially urged on this appeal.

First. It is urged that a recovery for the taxes of 1881 is barred by the statute of limitations. This action was commenced December 24, 1888. The cause of action arose when these taxes were misappropriated. Strough v. Supervisors, 119 N. Y., 212 ; 28 St. Rep., 967. They were so misappropriated when taxes which should have been otherwise used were used for the benefit of the county. Id.

The court found that the money collected for the year 1881, now in question, was so used by the county treasurer on or before February 1, 1883. The amount for that year was $100.50. The appellant urges that inasmuch as the state tax had been paid by the county before November 10, 1882, the misappropriation must have been made before that time. But the money now in question was not kept separate. It went into the county treasurer’s hands mingled with other money. And on the 10th of ¡November, 1882, he had money on hand not expended, amounting to $248.68, which amount was more than the moneys in question. He could, therefore, at that time have paid the money in question where it should have been paid. If he had once paid the state by this amount, still it cannot be said that there was a misappropriation so long as the county treasurer had remaining in his hands moneys raised in the year out of which he might have paid the present claim. There had. been a deficit from the previous year. So that the money in his-hands did not come from that year.

Again, the appellant claims that the taxes of 1887 could not be-included in the recovery because the finding of the court is that, they were misappropriated on or before February 1, 1889, which, was after the commencement of the action. There is a special finding that these taxes were not paid or used for the benefit o£ the county until after January 1, 1889.

The complaint demands a judgment for the amount of these-taxes, and that they be levied and collected from the taxable-property and paid to the treasurer to cancel bonds of the town, and for investment as a sinking fund. The judgment is to the-same effect This is then not simply an action for the recovery of money. It is to compel the levy of the amount; the payment thereof on bonds and the investment of the same pursuant to. statute. It is then an action in equity, according to the distinction in the Code, §§ 968, 969, and according to the old law.

But it has always been the rule in equity cases that such relief may be granted as the facts existing at the close of the litigation may demand. That rule applies here.

The next point of the appellant is that in chapter 283, Laws of 1871, where the language is: “ All taxes, except school and road taxes, collected, etc.,” the words “school taxes ” refer to the tax imposed by the state for the maintenance of common schools. . Hence, the appellant insists that the recovery should be reduced! by $478.66, that being the aggregate of the state tax for those-levied to maintain common schools.

We think it is plain that the words “ school and road taxes ” referió local taxes for school purposes and for road purposes. The tax imposed by the state is called the state tax, not a canal tax, or a school tax, or a general fund tax. As remarked in Clark v. Sheldon, 106 N. Y., 110; 8 St. Rep., 537, “ it must always be easy for-the collector to make the proper deduction of school and road taxes.” It would certainly be impossible for him from any papers in his hands to deduct that proportion of the state tax which is-raised for the maintenance of common schools. The meaning, therefore, of the words “ school and road taxes ” is plainly intimated in that opinion. It is unnecessary to say more on this.

Another point is that the supervisor of this town in 1888 submitted this matter to the board of supervisors at its annual meeting, and it passed upon the same and decided not to levy the-tax. Hence, the appellant says that plaintiff’s remedy was by certiorari or mandamus. That such an action as the present will lie is settled by the Strough case, ut supra, and by the Bridges case, 92 N. Y., 570, and the Newman case, 45 id., 676. The question,, then, is whether the application to the supervisors and their refusal is a bar. We think not There was no adjustment of' amount needed. The amount was settled. Possibly a mandamus might have issued to compel the board to act But the plaintiff was not limited to that remedy.

These are the points which are specially brought to our notice. On the general question involved in the case we follow the opinion of Justice May ham at special term without repeating what he has said.

Judgment affirmed, with costs.

Landon, J., concurs.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    Charles Barnum, Sup’r, Resp’t, v. The Board of Supervisors of Sullivan County, App’lt

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Town bonds—Siskins eund—Renewal bonds.
    Where a town issues new hands to pay off the original hands and coupons, it is entitled to the same right in regard to the application of the railroad taxes to their payment under the statute of 1869, as it was in regard to the original hands.
    Appeal from judgment in favor of plaintiff rendered on trial before the court without a jury.

      John F. Anderson (Lewis E. Carr, of counsel), for app’lt; T. F. Bush, for resp’t
   Learned, P. J.

This case is similar to that of Kilbourne, Supervisor, v. Board of Supervisors, decided at this term. It will not be necessary to consider any of the questions decided in that case.

Another question, however, is raised, viz.: whether the bonds of the town of Thompson, which are here involved, are such that the provisions of chapter 907, Laws of 1869, as amended by chapter 283, Laws of 1871, apply to them.

The town of Thompson issued bonds in 1869 to aid the Monticello & Port Jervis Railroad Co., and such bonds were exchanged for stock of that company. The case of Horton v. Town of Thompson, 71 N. Y., 513, was an action on one of these bonds. The court of appeals, by a vote of four to three, held that the-bond was void and reversed the decision of the general term. 7 Hun, 452. This doctrine was, however, in 1880, emphatically overruled by the supreme court of the United States in Thompson v. Perrine, 103 U. S., 806, and again in Same v. Same, 106 id., 589.

Thereupon, as the town of Thompson was thus declared to be-liable on these bonds, an act was passed in 1883, chap. 226, authorizing the town to issue bonds and pay judgments and debts. Bonds were accordingly issued and with the avails the. judgments and original issue of bonds were all paid off. The issue of bonds under the act of 1883 is now outstanding and it is m respect to that issue that the remedy is sought in this action. It is expressed in that act that the new issue is for the purpose of paying off bonds issued in aid of the Monticello & Port Jervis R. R. Co. and judgments and coupons of-said bonds.

This act of the legislature, accepted by the town, is an acknowledgment of the validity of the original bonds and of the error in the decision of the court of appeals. It can no longer be claimed that the original bonds were at any time invalid.

The bonds which were considered in Strough v. Supervisors, 119 N. Y., 212; 28 St. Rep., 967, had a history somewhat similar. In People ex rel. Irwin v. Sawyer, 52 N. Y., 296, the court of appeals Reversed the action of the county judge in his proceedings to bond the town of Orleans. In Orleans v. Platt, 99 U. S., 676, however, the supreme court of the United States held that the bonds issued under the proceedings before the county judge were valid. And in the Strough case, ut supra, the court of appeals gave the remedy in respect to those bonds which is now asked for.

The only question then which need be considered is whether the renewal of the debt by the issue of new bonds under the act of 1883 gives the town of Thompson the same right in regard to the application of these taxes which was had in the Strough case and others.

The provisions of the statute, chap. 283, Laws of 1871, important to consider are : “ All taxes * * * or so much thereof as may be necessary in any town, village, or city on the assessed valuation of any railroad in said town, village or city for which said town, etc., has issued or shall issue bonds to aid in the construction of said railroad shall be paid, etc.”

The object of this is plain. The town has incurred a debt to build a railroad. It has thus increased the taxable property in the town. It is reasonable that the taxes on this increase shall go towards defraying the debt of the town. Clark v. Sheldon, 106 N. Y., 104 ; 8 St. Rep., 537. How the object to be accomplished is just as reasonable and the end is just as much aimed at when the debt of the town is renewed as when it remains in its original form. The object is to relieve the town in part from the burden which it has assumed for the public benefit. And the town is under the same burden of-ter it has renewed the debt as before. This view was taken in Van Tassell v. Derrenbacher, 56 Hun, 477 ; 31 St. Rep., 312, although not there necessary for the decision. And it is plainly sound.

It is the general tendency of our law to. consider obligations as renewals, rather than new debts, when such is practically their character and where no conflicting rights are involved. Yery likely in the present case the new issue of bonds was sold to persons other than the holders of the old. And so too the old bonds might have been transferred to others than the original holders. But that would make no difference. As between the town and the county the town still remains indebted and the tax on the railroad property is still appropriated to the debt.

The learned justice held that these taxes could not be applied to the costs in the judgments which were paid bv the new issue of bonds; but that the amount of the recovery in this case would not "be sufficient to pay the original debt So that the question, whether the costs could be paid from these taxes does not arise.

The judgment should be affirmed, with costs.

Landon, J., concurs.


author: Landon, J.

text:
    William Moore, App’lt, v. Simeon Brown, Resp’t

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Mines—Executory contract—Rights under.
    Certain citizens discovered a garnet mine on lands of the state. Before obtaining from the state, under Laws of 1890 chap. 411, a right to work it they made a contract not under seal with the defendant by which they agreed for a consideration of five dollars per 2240 pounds royalty to sell “ ail or fifty tons of garnet out of the land * * * with privilege to mine each and every year till all gone.” The citizens sold to plaintiff who rejected said agreement. In an action by him to recover possession, which the defendant refused to yield, Held, that the agreement was an executory contract which gave the defendant no right of possession in the mine, the said right remaining in said citizens.
    2. Same—Remedy for breach.
    The remedy of the defendant was in damages for breach.
    3. Same—Specific performance not decreed.
    If there were equitable considerations, entitling the defendant to specific performance, the complaint was not drawn in a manner to make it possible to give such considerations effect in this action.
    4. Same—Champerty—Adverse Title.
    The deed to plaintiff was not void for champerty; for the defendant was not, when said deed was given, in possession under a title adverse to-that of said citizens, but was their licensee, if he had any rights at all.
    Appeal from a judgment of non-suit directed by the court at the Essex circuit in June, 1891, at the close of the whole testimony, upon the trial before a jury.
    The complaint alleged that in January, 1890, George H. Wood and Adolphus Shields, citizens of this state, discovered a garnet mine upon lands belonging to the people of the state, in the town of Minerva, describing the lands, being about six acres: that previous to December 23, 1890, they duly filed in the office of the secretary of state a notice of said discovery with a description of said lands, and on said December 23, 1890, they filed with the commissioners of the land office a petition that consent be given them to open and work said mine as provided by law : that on that day said petition was granted and said consent duly given them by said commissioners.
    These allegations of the complaint were admitted by the answer, and the proceedings are set forth in full in the case.
    The complaint further alleged, and the fact was proved, that Wood and Shields, April 14, 1891, by deeds of conveyance granted and transferred to the plaintiff all their right, title and interest in and to said mine and premises.
    The complaint further alleged that April 6, 1891, the defendant wrongfully entered into possession of said premises and since then by his servants has held possession thereof: that April 14, 1891, the plaintiff demanded of the defendant delivery to him of such possession, which the defendant then refused and still refuses, to plaintiff’s damage $500. Judgment was demanded for the possession of the premises, and for damages for withholding them.
    Defendant by his answer admitted his possession and justified it under a contract with Wood and Shields, setting forth the same.
    It was shown by the evidence that when W ood and Shields discovered this mine they supposed it was upon the land of one Connors, and they obtained from him the supposed right to work it, and commenced working it While thus engaged, June 11,1890, the defendant made the following contract with them in writing not under seal:
    “ This article of agreement or contract, made and entered into this 11th June, 1890, by and between George H. Wood and Dolph Shields, of the town of Johnsburgh, M. Y., parties of the first part, and Simeon Brown, of the second part, same town and state, witness as follows: The said parties of the first part, for and in consideration of five dollars per 2,240 pounds royalty, hereby agree to sell all or fifty tons of garnet out of the land shown me on lands said to belong to Mart Connors, situate in town of Minerva, Essex county, M. Y., with privilege to mine each and every year till all gone, and if said parties of the first part should at any time mine any garnet elsewhere on lands of Connors, said Brown shall have the first refusal of it at the going market price. And if ever mined on royalty, said Brown shall have first refusal. Said Brown to take what garnet is now dug, at twenty dollars per every 2,240 pounds, or gross ton. Said parties of the first part to allow said Brown the first twenty tons of garnet free from charge, to make roads and open mine, all garnet to be paid for when weighed. To all the above we all agree. Said mine on the east side of the brook
    “Geo. H. Wood,
    “ Dolph Shields,
    “ Simeon- Brown-.”
    Wood and Shields testified that on the following day they became dissatisfied with the contract and told defendant they would not stand to it; that the royalty was too low and the weight per ton too high. They testified that they did not read the contract; that the defendant read it as for fifty tons and no mora Defendant proposed that they make a new one and have Waldron, a person who did legal business in that neighborhood, draw it This was not done. Wood and Shields soon ascertained that the land upon which the mine was belonged to the state and not to Connors, and they then took the proceedings which resulted in procuring the consent of the commissioners of the land office. The defendant assisted in the proceedings resulting in obtaining the consent of the commissioners, and incurred expenses in so doing to the amount of $76.22. He testified that he did this under an agreement with Wood and Shields that the existing contract in writing between them should be valid in case the state allowed their claim. Wood and Shields testified that they requested defendant to go to Albany to assist in obtaining the consent of the state, but deny that they agreed to continue the contract with him if the state allowed their claim; that they told defendant before the claim was allowed that his services were no longer required. The defendant rendered them a bill for the same amounting to $116.22. The bill was produced in evidence. Wood and Shields; however, conceded that they told defendant they would allow him an interest in the mine if the state allowed their claim..
    The defendant was working the mine when Wood and Shields conveyed to the plaintiff, and when this action was commenced.

      R. L. Hand, for app’lt; J. W. Houghton, for resp’t.
   Landon, J.

Chapter 411, Laws 1890, amending 1 R. S., 281, §§ 2, 7, provides that all mines, minerals and fossils discovered, or hereafter to be discovered, upon any lands belonging to the people of the state, are the property of the people. “Any citizen of this .state who shall have discovered, or who may hereafter discover, any valuable mine or mineral upon said lands, and shall file the notice in this title required, shall be entitled to work such mine, and he and his heirs and assigns shall have the sole benefit of all products therefrom, upon payment into the state treasury of a royalty of two per centum of the market value of all such products.” * * *

“ § 2. Nothing contained in this title shall * * * be construed to give any person a right to enter on or break up the lands of any other person, or of the people of the state, or to work any mine in such lands, unless the consent in writing of the owner thereof, or of the commissioners of the land office, where the lands 'belong to the people of this state, shall be previously obtained.”

Wood and Shields became entitled “to work such mine,” and “ have the sole benefit of all products therefrom.” They had the Tight “to enter on” and “break up the lands.” Their rights were exclusive. The state retained the title to the soil, but granted to Wood and Shields the full beneficial interest in the minerals, and the exclusive right of possession of the lands for the purpose of working the mine. The state granted nothing to the defendant, and the defendant has no right except what he holds under Wood and Shields.

Defendant seeks in this trial to cut down the grant to Wood and Shields in order to appropriate to himself as a means of defense whatever of title remains to the state. He owns nothing under that reserved title, and is not in a position to invoke the rules of strict construction of a public grant which may be invoked by the sovereign, or its grantees, to resist the unjust encroachment of the subject.

We think Wood and Shields acquired from the state the right of exclusive possession of the lands in question, certainly as against every one except the state or its grantees of some right in them consistent with the right of Wood and Shields. The defendant’s possession, if not warranted by contracts with Wood and Shields, is not consistent with their rights, and is in exclusion of them. Wood and Shields had more than the mere use of the

land; they owned, for the purposes of removal and sale, the mineral, and subject to the payment of royalty to the state had an. estate in fee therein. Genet v. D. & H. Canal Co., 122 N. Y., 505, 527; 34 St. Rep., 246. Ejectment is, therefore, the proper remedy. Rowan v. Kelsey, 18 Barb., 484; Jackson v. Buel, 9 Johns., 298; Jackson v. May, 16 id., 184.

Defendant cites cases of easements. An easement is not a title-to land or of an interest in land within the meaning of the statute authorizing ejectment Child v. Chappell, 9 N. Y., 246, 251; Wilklow v. Lane, 37 Barb., 244.

Defendant could not lipón the evidence claim any title to the mine. The contract in writing between him and Wood and Shields was-not a conveyance and did not purport to be. It was an executory contract for the sale by them to him of “ all or fifty tons of garnet out of the land shown me * * * with privilege to mine each and every year until all gone.” Assuming the validity of this agreement, and if free from fraud it was-valid, Wood and Shields had their election either to observe it,, or violate it and answer in damages. Clark v Marsiglia, 1 Den., 317; Lord v. Thomas, 64 N. Y., 107; Parr v. Village of Greenbush, 112 id., 246; 20 St. Rep., 725. The testimony tends to-show that they did refuse to perform, or to allow defendant to-perform, and the defendant with full knowledge of the fact took possession of the mine. If such was the case, and if there was-any question about it it was for the jury to determine it, the defendant entered at his peril, and could establish no equities by his subsequent expenditures. The parties fell into a dispute respecting the future performance of an executory contract relative to the working of the mine, and Wood and Shields refused performance. The defendant’s remedy was not to enforce performance by the strong hand, but to seek redress in damages. The-defendant rendered services and expended money in securing for Wood and Shields the consent of the state. There is a question whether he was to have his pay in garnet from the mine or-otherwise, or whether his services and expenditures were in aid of the contract which he had made with Wood and Shields, and were bestowed upon their promise to recognize the contractin case the state allowed their claim. The defendant took different positions respecting his services and expenditures. His-remedy, if they were rendered at the request of Wood and-Shields, is an action to recover for them.

If there are equitable considerations, such as the insolvency of" Wood and Shields, the expenditure of money and services at their request in securing for them the title to the mine upon their-promise of their performance of the contract, and the inability to measure the value of the contract in advance of the actual working - of the mine, and these require a specific performance of the contract, then it may well be that the defendant was justified in taking possession of the mine, if done peaceably, since the law will justify what it will award. But the answer was not framed in-> that aspect, nor the evidence addressed to it.

Defendant urges that the deed to plaintiff was void for champerty. But defendant was not in possession of the mine, claiming under a title adverse to Wood and Shields; for he had no title whatever, good or bad. He went into possession on his own showing under Wood and Shields and under their title, and therefore not under an adverse title. Dawley v. Brown, 79 N. Y., 390. He was at best but their licensee, and they revoked the license by their sale to the plaintiff. Still the plaintiff knew all the facts, and if there were any equities which would disable Wood and -Shields from revoking the license, they would be valid against the plaintiff.

The judgment is reversed, new trial granted, costs to abide the -event

Learned, P. J., and Mayham, J., concur.


text:
    Helen Matthews, Resp’t, v. Horace Matthews, App’lt

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Specific performance—Oral agreement—Part performance.
    The defendant made an oral agreement with the plaintiff that if she and her husband would leave their home, sell their property, come and live with him and keep house for him, he would give them the use of a part of his premises and of certain chattels during his life, would give the same to the plaintiff upon his death and when they came would give them a written agreement to the above effect. The plaintiff relied upon said agreement; she and her husband sold their property and went to live with defendant, who after a time became dissatisfied, refused to give any written agreement, finally made them quit his premises and disposed of his premises and of a part of said chattels. Held, that the plaintiff having performed in part and having been by the defendant prevented from full performance, was entitled to specific performance of the oral agreement to give a written agreement.
    2. Same—Damages where there is no other remedy.
    As the defendant had refused to perform and had also disabled himself to perform, the plaintiff’s only remedy was in damages whose measure was the value of the contract.
    3. Same—Measure of damages.
    The value of the contract was the present value of what the plaintiff would be entitled to receive ultimately, less what the defendant could show should be deducted, but this deduction could not include support or services, which the defendant had refused to receive.
    Appeal from a judgment entered in Clinton county upon the .report of a referee.
    The action was to recover damages for the breach of an agree.ment

      A. W. Boynton, for app’lt; F. A. Rowe, for resp’t
   Landon, J.

The facts found by the referee are supported by the , preponderance of the evidence.

They show an oral agreement between the parties to the effect that if the plaintiff and her husband would dispose of their real and personal property in St. Lawrence county, where they resided, and leave their home there, and come and live with the defendant upon his premises in Clinton county where he was then living alone, and take charge of his household and work his land and take care of and maintain him during his life, he would give them the use of a certain part of the premises during his life and of his-furniture and chattels, and would give the plaintiff the same upon his death, and would upon their coming to live with him give-them a written agreement to that effect

The defendant was the uncle of the plaintiff, was upwards of eighty years of age, and had neither wife nor child.

The plaintiff and her husband, relying upon this oral agreement, disposed of their property in St. Lawrence county, arid in December, 1886, removed to Clinton county and took up their residence with the defendant upon his premises, and from that time until July following cared for and maintained the defendant as a member of the family, and performed all the conditions of the agreement on their part. The defendant then became dissatisfied and refused to give the plaintiff any written agreement, required the plaintiff and her husband to quit his premises, and in March, 1888, without any fault upon their part, ejected them therefrom,., and afterwards conveyed the premises to a third person, and disposed of the greater part of the furniture and chattels. The husband assigned to the plaintiff whatever cause of action accrued tohiin from the transactions.

That the plaintiff is entitled to some recovery cannot be questioned. She performed upon her part so far as performance was due, and was ready and willing to continue performance when the defendant forbade her further performance, and disabled himself from specific performance upon his part by his disposal of the subject of the consideration he was to render her.

Upon performance of the agreement that plaintiff and her husband should break up their home in St. Lawrence county and take up their home with the defendant in Clinton county, the-plaintiff was entitled to the written agreement showing her present and future rights, and was entitled to a specific performance of the oral agreement to give the written one. That part of the agreement was complete: the defendant could not rescind after performance; he could only violate it. The plaintiff’s rights under it were vested. It did not vest in her the title to the furniture or to the land, but the right to the agreement which would vest the title in her upon the defendant’s death, and would give her the use of them meanwhile. The complaint states the facts constituting the cause of action and is adapted to equitable as well as legal relief. The plaintiff being entitled to the specific perfomance of that portion of the contract, the case thenceforth stands as if such specific performance were decreed. The executory contract, for the ultimate title of the chattels and land is therefore to be considered as if in writing, executed and delivered.

The defendant having refused performance and disabled himself from performance, the plaintiff being ready and willing to-perform on her part, the plaintiff’s right of action is complete. Woolner v. Hill, 93 N. Y., 576; Hawley v. Keeler, 53 id., 114.

The defendant’s acts preclude the award of any relief except damages. The measure of damages is the value of the contract. Taylor v. Bradley, 39 N. Y., 129 ; Howard v. Daly, 61 id., 362. The value of the contract was the present value of what plaintiff’ would ultimately be entitled to receive under it, less the value of what defendant should show ought to be deducted from it. Of course he could not claim deduction for the value of the support and services which he refused to receive at her hands. The referee seems to have dealt as liberally with the defendant as the evidence would warrant.

If it should be conceded that the plaintiff was not entitled to a specific performance, but only to damages for the breach of the oral agreement to give the written one, the same result would be reached. Equity often denies specific performance when, all the circumstances considered, compensation for damages seems to be the more equitable. But such cases are none the less the subjects of equitable cognizance if without its intervention the legal remedy would prove inadequate. Rindge v. Baker, 57 N. Y., 209.

Again, if it be conceded that the entire contract was for compensation in land, and void because within the statute of frauds, yet being partly performed, the statute permits its specific performance if justice requires it, and such performance is practicable. 2 B. S., 135, § 10.

Cases are numerous in which specific performance of such contracts has been decreed Lobdell v. Lobdell, 36 N. Y., 327; Freeman v. Freeman, 43 id., 34; Kenyon v. Youlan, 25 St. Rep., 299 ; Dill v. Harbeck, 17 id., 607; Thorp v. Stewart, 44 Hun, 233; 8 St. Rep., 289. Specific performance being impossible because of the wrong of the deféndant, equity, as we have seen, substitutes compensation for it.

Thus, through the equities of the plaintiff which the defendant has violated, the plaintiff is entitled to damages, to be awarded upon the same basis as if the contract were in writing. Cases at law in which the plaintiff treating a contract for services payable in land as void under the statute, and suing to recover the value of his services as upon a quantum meruit, have no application. Unless equity is invoked, the plaintiff, for such services rendered,, can only recover upon the implied legal obligation of the defendant to compensate him.

The defendant objects that the paroi agreement was not sufficiently definite in terms to admit of specific performance. It is plain that the defendant agreed to make the necessary papers to vest in the plaintiff the title to the property upon his death. There is no ambiguity as to the subject matter, or the terms upon which the defendant would transfer it to the plaintiff. She was to have absolute title upon his death, and the use of it meanwhile upon her full performance. Whether this result was to be accomplished by defendant’s will, or by his conveyance and bills of sale, would be of little consequence. Whatever the form of the writings, they were to be adequate, and the court in decreeing performance would prescribe such as could be executed. Parsell v. Stryker, 41 N. Y., 480.

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


text:
    Ann Kline, Resp’t, v. Lucy McDonnell, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Fraudulent conveyance—Resulting trust.
    In an action by a judgment creditor of the estate of one John McDonnell, who was his creditor at the time of the transfer hereinafter stated, it was shown that one Morris conveyed to McDonnell’s wife premises for $500 for which McDonnell gave his note, that he paid nothing upon it and died insolvent, that there was paid upon it from his estate $275.18 and that some other person paid the balance of said note. Held, that the case was within 1 R. $., 728, §§ 51 and 52, relative to conveyances by one person where the consideration is paid by another.
    2. Same—Extent op trust.
    A trust arose in favor of the judgment creditor in said premises but only to the amount of $275.18, interest thereon and costs.
    Appeal from a judgment entered in Montgomery county upon the decision of the court upon the trial without a jury.
    The action was to secure satisfaction of a judgment in favor of the plaintiff against the administrator of the estate of John McDonnell, deceased, out of certain premises granted to Lucy McDonnell by John Y. Morris, the consideration for which was agreed to be paid by John McDonnell, and was secured by his note, part whereof was paid after his death in the due course of the administration of his insolvent estate.
    John Y. Morris, October 23, 1877, conveyed by deed to the defendant Lucy McDonnell a parcel of land for the expressed consideration of $500, for which John McDonnell, husband of Lucy, on the following day gave his promissory note for $500, payable one year from date. John McDonnell died February 5, 1878, intestate and insolvent. The defendant was appointed administratrix of his estate and in the due course of administration $275.18 were paid upon said note, part from a dividend declared by the surrogate from the proceeds of his personal estate, and part from a dividend from the proceeds of his real estate. The balance of the note was paid, but by whom does not appear. John McDonnell paid nothing upon the note.
    The plaintiff is a judgment creditor of the administrator of the estate of John McDonnell upon a debt against said McDonnell existing at the date of the deed from Morris to Lucy McDonnell. She exhausted her remedies against the estate of said McDonnell before bringing this action. Her judgment is unsatisfied to an amount exceeding $2,000.
    The trial court held that a trust resulted in favor of the plaintiff in the lands thus conveyed to the defendant, and directed the sale thereof to satisfy plaintiff’s judgment with costs.

      Z. S. Westbrook, for app’lt; M. L. Stover, for resp’t.
   Landon, J.

We have no doubt that the giving of the deed by John V. Morris to Lucy McDonnell, and the giving of the note for the purchase price by John. McDonnell to Morris, should be regarded as contemporaneous transactions, although the note bears date one day later than the deed. ' The deed was doubtless delivered in expectation of receiving the note, and the note was delivered to close the transaction. The point urged by the defendant, that the note to secure the consideration was not delivered by John McDonnell at the time of the grant to his wife, but subsequently, does not meritoriously exist upon the facts, and need not be further considered.

The case is within the statute, 1 R. S., 728, §§ 51, 52, which provides, “ Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, * * * such conveyance shall be presumed fraudulent as against creditors at the time of the person paying the consideration; and where a fraudulent intent is not disproved, a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands.” Garfield v. Hatmaker, 15 N. Y., 475.

Although John McDonnell gave his note for the entire consideration, he paid nothing upon the note in his lifetime and his estate paid only part of it Upon this state of facts the trust results in favor of the creditor pro tanto.

The statute is intended to protect creditors against the fraud of their debtors, and to apply the debtor’s property to their benefit, although he has changed the form of it and parted with his title to it. A literal reading of § 51 seems to require that the debtor shall pay the whole consideration in order that the trust result; but this would be inequitable, since the object is to reach what he thus diverts. A literal reading of § 52 seems to provide that whenever the trust does result in favor of the creditors it results “to the extent that may be necessary to satisfy their just demands,” irrespective of the extent or proportion of the debtor’s contribution toward the purchase price. But this cannot be so, since in that case the creditor might not only take the equivalent of the debtor’s contribution to the purchase price, but might confiscate that proportion of the land which his debtor did not pay for but which the grantee did.

Suppose John Doe had paid half the consideration and John McDonnell the other half; would not a trust result in favor of John Doe’s creditors in like manner as in favor of McDonnell’s ? The statute gave the creditor an equitable remedy; but an equitable remedy to repair his debtor’s wrong, not to enable himself to do a wrong to a third person who owes him nothing. The statute, therefore, when it declares that “ a trust shall result in favor of such creditors,” means that it shall result in respect of so much of the land as is represented by the debtor’s contribution to the purchase money.

These views find support in Botsford v. Burr, 2 Johns. Ch., 405. True, that case was before the statute, and when the resulting trust arose in favor of the person paying the purchase money instead of, as now, in favor of the creditors of such person. But the principle upon which the trust, arose is the same in both cases. The statute changed the beneficiary of the trust. Chancellor Kent said in that case: “The cases recognize the trust where the money of A. formed only a part of the consideration of the land purchased in. the name of B. The land in such case is to be charged pro tanto.” Story’s Eq., 11th ed., § 1201c; McGowan v. McGowan, 14 Gray, 122.

The trust resulting in favor of the plaintiff is in the land. But equity would be done if defendant should pay to plaintiff upon her judgment against the estate of John McDonnell the amount of the purchase money paid by him, with interest and costs, within thirty days after service upon her or her attorney of a copy of the judgment. Failing to make such payment the land should be sold as provided in the judgment appealed from, and from the proceeds, after payment of costs, at least the same amount should be paid the plaintiff. But in such case the plaintiff may take her pro rata share of the proceeds of the sale of the land, the costs being charged upon the defendant’s share. Our computation, made by adding interest on the purchase money to date of first payment, and deducting that payment, and adding interest on the balance to date of last payment, left unpaid at that date $298.76. The total paid was $275.18. The plaintiff’s equity is, therefore, 27518-57394ths, and in case of sale, if that equity exceeds the $275.18 and interest, the plaintiff will be entitled to the excess, free from costs.

Judgment modified accordingly, and as modified affirmed, without costs of this appeal.

Learned, P. J., and Mayham, J., concur.


author: Mayham, J.

text:
    Moses T. Sayles, App’lt, v. The National Water Purifying Company, Resp’t

      (Supreme Court, General Term, Third. Department,

      Filed November 30, 1891.)

    1. Sale—Conditional—Receiver—Fixtures.
    A knitting mill company purchased a filter of a corporation under a written agreement, by which the title was to remain in said corporation until full payment. The knitting mill company did not pay for the filter, and failed. It had attached the filter to its mill, but only by pipes and ordinary connections. Beld, that as between the corporation and a purchaser, from a receiver of the knitting mill company, of its real estate, said purchaser knowing of the agreement as to the title of the filter, it was personal property and belonged to the corporation, the vendor.
    2. Same—Purchaser in good faith—Laws 1884, chap. 315.
    As the purchaser from the receiver knew that the filter was not the property of the knitting mill until full payment, and as he knew such payment had not been made, he was not a purchaser in good faith and for value within chap. 315, Laws of 1884.
    This action is prosecuted by plaintiff as assignee of an alleged cause of action arising in favor of Kennedy B. Dowsley,' plaintiff’s assignor, against the defendant, for an alleged wrongful entry by defendant upon Dowsley’s premises, and removal of machinery or apparatus, known as the “Rational Filter.”
    The plaintiff’s assignor claimed title to the real estate on which the filter was placed, and to the filter, under a receiver’s sale of the real estate in question, and also under several mortgage sales of the same premises. At the time of the receiver’s sale the filter was upon the premises, and the plaintiff claims that, as between the defendant and the purchaser at such sale, was a part of the real estate.

      The court ordered judgment for. the defendant, and the plaintiff .appeals.

      E. F. Bullard, for app’lt; M. L. Stover, for resp’t
   Mayham, J.

The principal, and. perhaps the only question arising on this appeal, is as to whether or not plaintiff’s assignor took title to this filter under the receiver’s sale or the foreclosure sales, in which he was purchaser.

On and prior to the 1st day of December, 1887, the Globe Knitting Co. had the legal title and was in possession of the Mill’s premises and real estate which were afterwards sold by the receiver of that company to Kennedy B. Dowsley, plaintiff’s assignor.

On that day the Globe Knitting Go. made an order on the National Water Purifying Go. of which the following is a copy

“Amsterdam, N. Y., December 1, 1887. “National Water Purifying Co.,

“ 141 Broadway, New York :

“Please furnish one National Filter No. 5, eight inches in diameter, seven feet high, capable of sustaining an internal pressure of sixty pounds per square inch and guaranteed to deliver one hundred and five gallons of bright, clear water per minute. The National Water Purifying Go. to deliver and erect the same on the first floor of the Globe Knitting Mill, Amsterdam, N. Y., without any expense whatever to the Globe Knitting Go.

“ The National Water Purifying Co. to supply such valves and immediate piping connections as are shown on the back of this contract. To prepare suitable place for reception of the filter and to make necessary piping connections with the same. For the above we agree to pay the National Water Purifying Go. the sum of $1,300, less $300 as a testimonial, when the water operates as above.

Terms of payment: The title to vest in the Globe Knitting Go. only on full compliance with the above terms and conditions, and on non-compliance therewith the filter to be returned.

“ Signed,

“ Globe Knitting Co.,

“Thomas B. Lawson, Secretary

“Accepted:

“National Water Purifying Go.

“ per H. M. Dental, Pres."

The filter was placed in the mill of the. Globe Knitting Go., pursuant to this contract, and was not paid for by the company. Before July, 1888, and prior to the commencement of this action the Globe Knitting Go. became insolvent and John H. Giles was duly appointed receiver of that corporation, and took possession of its knitting mill, and of all of its property and effects, for the purpose of winding up its affairs, and while so in possession, and on the 4th day of September, 1888, an order of this court was made on behalf of the Hational Water Purifying Co. (this defendant) directing the receiver to turn over this filter to that company, on the payment to the receiver of an amount claimed to have been expended by the Knitting Co. On the 27th of April, 1889, the receiver sold the real estate of the Globe Knitting Co. to plaintiff’s assignor and conveyed the same to him by deed, reciting one dollar as the consideration in such deed. At the time of the execution of this deed the defendant had not removed the filter from the mill.

Upon this state of facts the learned trial court held that the purchaser under the receiver’s sale got no title to the filter. By the receivership the receiver got no greater or better right than the Globe Knitting Co. had, and could only as receiver convey the interest which vested in him as receiver, and if as between the defendant and the Knitting Co. defendant retained the title to the filter, the same right would remain in the defendant as against the receiver and his grantee. As a general rule, the receiver gets only such title as the defendant or judgment debtor has in the estate of which he takes possession. Beach on Eeceivers, 156, § 204. In Bell v. Shibley, 33 Barb., 614, Bockes, J., in discussing the rights and powers of receivers, says: “ The receiver is in no better condition, as he stands in the place of the company and has no better rights.”

It has been repeatedly held that a receiver is subject to all the lights and equities existing against the company. In Hyde v. Lynde, 4 Coms., (4 N. Y.,) 392, Bronson, J, says: “ The recovery in this case seems to have gone upon the ground that the receiver had greater rights than those which belong to the company. But for the most, if not for all, purposes he took the place and stood as the representative of the company. He is as much bound by a settlement which the company was authorized to make as was the company itself. It would be strange, indeed, if the legal acts of the corporation did not bind the receiver of its effects.” Adopting, as I think we must, this as the settled law, we must hold that if the defendant by the reservation in the bill of sale reserved the title to this filter, or in other words, if the delivery of the filter under that agreement conferred no title on the Knitting Co., then the receiver got no title by virtue of the receivership and could confer none upon the purchaser of him.

The important question, therefore, is, did defendant by virtue of the contract with the Globe Knitting Co. and the annexation of the filter to the mill, as the same was annexed, so far divest itself of .the title to the filter as that it would pass on the conveyance to the receiver as a fixture of the mill or an appurtenant to the mill property, under the circumstances of the case, after the court had by order directed the receiver to deliver and turn over the filter to the defendant and permit it to remove the same?

We think not, as between the defendant and the Globe Knitting Company it was expressly agreed that no title to the filter should pass until it was paid for.

The Knitting Company, until that condition was complied with, was a mere bailee of the filter as between it and the defendant, and any annexation to the mill by the Globe Knitting Company could not change that character or relation between it and the defendant. But it does not appear to have been so annexed to the mill as necessarily to give it the character of real estate, especially between the bailor and bailee. The judge finds as a fact that in removing the filter the defendant did no damage to the real estate, and the only evidence of annexation was its connection by pipes with other machinery, the filter itself setting loosely upon the floor without any fastening to the same. It is clear that the filter was not a part of the building itself or necessary to the construction, existence or support of the building, and that therefore it was in its nature a chattel, unless by its annexation it had become a part of the realty.

It was, therefore, of such a character as to be the subject of an express agreement between the parties, so that it might retain its character as personal property, although temporarily affixed to the freehold in such a manner that it would pass with the real estate but for the agreement.

In Ford v. Cobb, 20 N. Y., 348, it was held that bricks to be placed in a wall for the construction of a building could not retain their character as personal property by virtue of any agreement that they should remain such after placed in a building. But it was also in the same case held that salt kettles bought on credit and mortgaged to the seller as personal property, continued to be such after they were set securely in an arch for the manufacture of salt in such a manner as to become real estate but for the mortgage. And the rule is well-settled that erections by the tenant for the purpose of his trade and so affixed to the freehold as to pass on sale if erected and annexed in like manner by the owner, remain as between the landlord and tenant, but trade fixtures, and removable as chattels. Holmes v. Tremper, 20 Johns., 29 ; Miller v. Plumb, 6 Cow., 665. In Ford v. Cobb, supra, after referring to this class of cases, Denio, J., says: “If a subject which would otherwise be real estate can be made personal by the creation of a special relation between parties, it is clear that parties may effect the same thing by express agreement.”

In Tyson et al. v. Post, 108 N. Y., 221; 13 St. Rep., 504, Andrews, J., says : “ But as by agreement for the purpose of protecting the rights of vendors of personalty, or of creditors, chattels may retain their character as chattels notwithstanding their annexation to the land in such a way as in the absence of an agreement would constitute them fixtures.” Within these authorities and the principles upon which they stand, as illustrated in numerous other cases which might be cited, it is clear that this filter as between the Globe Knitting Company and these defendants was not a part of the real estate, and did not pass to the receiver as such, and as we have seen they retain the same character in his hands as in the hands of the company to whose rights and interests he succeeded, and cannot, therefore, be treated as real estate in his hands under his receivership. But it is insisted that if this filter is to be treated and regarded as personal property, that then the condition in thé contract of sale that the title should remain in the defendant is inoperative under the provisions of chapter -315 of the Laws of 1884, for the reason that it was not filed. That act provides that: “ In every contract for the conditional sale of goods and chattels hereafter made which shall be followed by an actual and continued change of possession of the thing contracted to be sold, all conditions or reservations which provide that the ownership of said goods and chattels is to remain in the person so contracting, other than the one so contracting to buy them, until said goods or chattels are paid for, or until the occurring of any future event or contingencies, shall be absolutely void as against subsequent purchasers and mortgagees in good faith, and as to them shall be deemed absolute, unless such contract for sale, with such conditions and reservations therein, or a true copy thereof, shall be filed as directed in this act”

The contract in this case comes clearly within the provision of the act, and if the plaintiff’s assignor was within the protection of the beneficial provisions of this statute, it would be decisive of this action. But the trial court has found, we think upon sufficient evidence, that the plaintiff’s assignor at the time he became the purchaser of this property knew that the filter was not the property of the Globe Knitting Mills, and was not, therefore, a purchaser in good faith, or for a valuable consideration, of the filter.

As the question of good faith was one of fact, it was for the trial court, and unless this court can clearly see that the finding was against the clear weight of evidence, it should not interfere.

On the whole case we see no sufficient reason for reversing this judgment

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.


text:
    Caroline Hebert, Adm’rx, App’lt, v. The Delaware & Hudson Canal Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Negligence—Absence of bules to govern a railroad yard.
    The yard of a railroad was about a mile long and had in it six parallel tracks. An employe was killed by the collision of a 'switch engine, upon which he was, with a wagon. A road ran across the tracks. This road was used to cart railroad supplies. It was alleged that cars standing on adjoining tracks prevented the engineer of the switch engine from seeing the wagon in time to prevent the collision. That this should have been avoided and rules as to it promulgated. The absence of rules governing the making up of trains in said yard was charged as negligence. The plaintiff gave no evidence of rules in other yards, nor of any method in common use in such matters. Held, that in the absence of expert opinion or proof of accepted methods, it would be improper and unsafe to allow a jury to speculate as to what were the proper methods to be adopted in a given case. That to allow the court or jury to formulate such rules by a verdict and then to say that because such rules were not in use the company was liable, would be to take the management of the corporation out of its hands.
    This action is prosecuted by the plaintiff as administratrix of the estate of her deceased husband to recover damages for the death of her husband alleged to have been caused by the negligence of the defendant in the management of its railroad. On the trial the plaintiff was nonsuited and from judgment entered upon the non-suit the plaintiff appeals.

      Lansing & Cantwell, for app’lt; Edwin Young, for resp’t.
   Mayham, J.

On the 14th of May, 1889, between three and four o’clock in the afternoon, the plaintiff’s intestate was killed while in the employ of the defendant, at its railroad yard in the village of Green Island, by the collision of one of the defendant’s locomotive engines, on which he was riding, with a loaded wagon. At the time of the accident and for ten years previous thereto the deceased had been the foreman of one of the gangs of men in this yard, charged with the duty of making up trains, and was familiar with all of the tracks in the same, and with the methods of conducting the work of the railroad at that place. Through this yard, which is nearly a mile in length, the main track of the defendant’s railroad runs in a northerly and southerly direction. On the east side of this main track are three side switch tracks, and -on the west of the main track, between it and the repair shops, are two side tracks, making in all six tracks nearly parallel, running through or partly through this yard. At nearly right angles with those tracks is a planked wagon way from the road way Tunning easterly and westerly across these railroad tracks to the repair shops.

This planked wagon-way is fifteen feet wide, and over it is 'carted by wagons and teams material from the road to the repair shops, for the use of the defendant in the repair shops. The side tracks on either side of the wagon-way are used for storing cars, while waiting in the yard, and trains so stored, or in waiting, are separated or broken at this wagon-way and this side track by the switch-men or gangs of men employed in the yard for switching cars and making up trains. It was part of the business of the deceased, as foreman of a gang of switch-men, to locate these stored -cars, and to see that the wagon-way was left open, and with this duty and the manner in which it was performed by himself and the other gangs of men, who were his co-employees and fellow servants, he was thoroughly familiar. The distance between these railroad tracks is from six to six and one-half feet The engines used by the defendant’s gang of yard men for switching have no pilots or tenders. There were four steps on the engine on which the deceased was riding, one on either side, at the front and rear end, attached to a platform about twelve inches wide and about two and one-half feet long at either end of the engine.

The couplers were accustomed to ride on the front or rear platform, wherever they got on; when they had to couple in front on the front platform and when in the rear on the rear platform. The cab on the engine was used for men to stand in and for coal. There are two platforms at each end of the engine of the size above described, to each of which a step is attached, and between them and either end of the engine are protecting timbers called dead-woods. The steps or platforms are to stand on to couple cam. At the time of the accident deceased was riding on the front end of the engine, upon one of the front platforms, or steps. The-engine was on the main track going north.

There were box cars standing on the track next westerly of the main track, filling that side track for about eight hundred feet south of and extending up to near the planked portion of the wagon-way. As the engine was proceeding north at a rate of speed of about four to six miles an hour it collided with the loaded wagon going westerly over the planked wagon-way and the plaintiff’s intestate was instantly killed. It does not appear to be claimed by the appellant that the defendant was guilty of contributory negligence in the construction of its locomotive engine machinery or track for which it can be held liable in this action, and the case shows that the engine used in doing the switching and making up the trains in the yard is of the character usually in use by the railroads for this kind of work; nor does it appear that any claim is made by the plaintiff, nor does the evidence disclose, that the defendant employed incompetent persons for the-performance of this work.

But it is insisted that the defendant was negligent in not making; and promulgating rules governing the manner of the performance of the work in this yard, and particularly in not making and promulgating a rule fixing the distance from this planked wagon way within which cars standing on these side tracks must not be left, and that that question was one of fact for the jury. It is not quite clear from the decisions where the power is lodged of determining in what case rules should be promulgated, and, when rules are made and promulgated, whether or not they are sufficient.

It would seem hazardous, in the case of the management of a great railroad corporation, to intrust that power either to the court or jury. The management of the intricate and complex systems of railroading is a business requiring great skill and knowledge of that subject, acquired only by long experience and careful observation of persons engaged in that business. To leave it to a court or jury to speculate as to what methods should be adopted in a given case for the protection of life or property, without the evidence of skilled and experienced witnesses upon which to act. to say whether in a given case a railroad company had adopted-proper and prudent and safe rules and regulations for the safety of the public, or of their employees, would be practically to take the control out of the hands and power of the company, and intrust it to the inexperience and caprice of a court or jury.

All will agree that these corporations should make such regulations for the management of their trains as will best promote the safety of the people. But it is manifest that the best and safest methods of management can only be ascertained by courts and juries through the medium of testimony and evidence of expert ■and experienced witnesses. In this case there was no testimony offered by the plaintiff showing what rules were necessary and proper to be adopted by the company for the management and control of the foremen of these gangs of switchmen and their men. All the evidence upon that subject is that no rules had been adopted and promulgated by the company oh this point. Without evidence upon that matter, we do not see how the jury -could reach any correct conclusion as jurors in an action. It is true the jurors might without evidence have speculated upon ■their own judgment, or perhaps their own knowledge of railroading, and reached a verdict

But this is not the method by which conclusions should be reached or verdicts rendered by juries. In Abel v. The President, etc., of D. & H. Co., 103 N. Y., 581; 4 St. Rep., 269, evidence was given of a system of rules in force by railroads for the protection of repairers while working under cars on the track, and the court in that case held that it should have been submitted to the jury whether the rules adopted by the defendant were as efficient as those adopted by other roads on the same subject. That in principle is not unlike the rule that has obtained upon the question of the safety of machinery, where it is held that where an employee is injured by defective machinery, it may be shown ■that safe or better machinery is in use, and the jury may determine whether or not it was negligence in the employer not to have adopted it.

But the case of Abel, supra, and kindred cases do not go to the length of holding that where there is no evidence of a better method, the jury may, upon their judgment or knowledge, assume that there is, and hold the defendant liable on that assumption. In the case at bar there being no evidence of any rules adopted either by the defendant or any other company under similar circumstances, the jury would have been called upon to make rules for the defendant and then hold that the defendant was liable for not having adopted and acted upon them in this case. In Donnegan v. Erhardt, 119 N. Y., 468; 29 St. Rep., 589, the injury occurred to the plaintiff through the defendant’s failure to perform a clear statutory duty in not keeping its road fenced, by reason of which a horse strayed upon the track, with, which the train collided, and an employee was injured, and the court held that the statutory obligation to maintain fences is for the protection of the employees and passengers as well as for the owners of animals straying upon the track.

We do not see that this case comes within the principle decided in the one last referred to. There is no evidence in this case that the cars left upon the side tracks were placed in such close proximity to the wagon road as to shut off or obstruct the line of vision of the deceased while on the engine, by any order of the yard master, or any one having control superior to the deceased.

The evidence shows that they had been left in similar position by the deceased as foreman of a gang of brakemen, and also by other foremen of similar gangs, and that that custom had prevailed for the entire ten years that the deceased had held that position. If, therefore, it was negligence to leave them in that position, that negligence was either the act of the deceased himself, or of his fellow servants, and in either event no liability would attach to the defendant.

In the one case it would be the contributory negligence of the deceased himself. In the other, that of a fellow servant. In either case, the rule that the defendant would not be liable is too well settled -to require the citation of authorities.

We are, therefore, led to the conclusion that the nonsuit in this-case was right.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.


author: Mayham, J. Landon, J.

text:
    The Bagley & Sewall Company, Resp’t, v. The Saranac River Pulp & Paper Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Warranty—Breach of—Written proposal—Paroi evidence.
    In an action to recover the contract price of certain wood pulp machinery, the answer was that the same was purchased under a guarantee as to the quantity and quality of work, which was not fulfilled. The proposition to sell stated: “We will guarantee the above machines to take care of all the pulp provided by 4 Scott grinders, and deliver pulp 50 per cent dry.” The acceptance of this offer was verbal. Held, that paroi evidence was admissible upon the part of the plaintiff to show the capacity of Scott grinders, said capacity being variable and dependent on the power employed.
    2. Same—Damages—Too remote.
    The defendant offered to show that said machines made a product only forty-five per cent dry; that the manufactured article was thereby made heavier, and consequently the expense of transportation was greater. Held, that such damages were too remote, and were not recoverable in an action for breach of warranty.
    Appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial upon the minutes at the circuit.
    The action was brought to recover the contract price on the purchase of certain machinery used in the manufacture of wood pulp. The defense set up in the answer was that the machinery was purchased by the defendant under a guarantee by the plaintiff as to the quantity and quality of work it would perform, and that the machinery did not fulfill the requirements of that guarantee. The jury rendered a verdict for the plaintiff.
    The defendant moved at the trial to set aside the verdict, which the court denied. Judgment was entered upon the verdict, and from that judgment and the order denying a motion for a new trial the defendant appeals.

      Brown & Adams, for resp’t.; Weeds, Smith & Conway, for app’lfc
   Mayham, J.

Prior to October 80, 1889, plaintiff had negotiations upon the subject of the purchase by defendant of a machine such as the one in question in the action, and on that day the president of the plaintiff and one Clark, on behalf of the defendant, had a further interview upon that subject, and the plaintiff then presented Clark an offer in writing, of which the following; is a copy:

“ Watertown, R Y., October 30, 1883.

Saranac River Pulp do Paper Co., Cadyville, N. Y.:

“ Gentlemen—We will furnish F. O. B. Watertown, 2 standard 72 wet machines, knocker screens, each with'six plates, 12x36, for sum of $2,300, or we will furnish two standard 72 wet machines, with new blast screens, for the sum of $2,900. We will guarantee the above machines to take care of all the pulp produced by 4 Scott grinders and deliver the pulp 50 per cent dry.

“ The Bagley & Sewall Co.

“C. H. C.”

The plaintiff proved, under defendant’s objection, that at the time this proposition was made, Clark, who represented the defendant, told the president of the plaintiff, who submitted this proposition, that the defendant expected to make with the Scott-grinders 3,000 pounds of dry pulp per day.

It appeared by evidence offered by the plaintiff that the capacity of Scott grinders for production was from one-half ton to five tons per day, according to the power applied, and that the plaintiff was informed that the one to be used by defendant was guaranteed to grind 3,000 pounds per day. Soon after this negotiation and the submission of the proposition, the proposed terms were accepted by the defendant and the contract was closed upon that basis.

The defendant now insists, as was insisted on the trial, that it was error to allow the plaintiff to prove what was said in the interview at the time the proposition in writing was submitted about the capacity of the Scott grinders or what amount of work it was guaranteed to perform for the defendant

The president of the plaintiff testifies that “the contract was closed upon the basis of the proposition we made to Clark.” The plaintiff also proved, under defendant’s objection, that at the time plaintiff told Clark that if they used blast screens, which was a new device, it would furnish them for $2,900 to take care of the product on the basis of 3,000 pounds each, * * * and Clark stated that 3,000 pounds was all they expected to get and all they agreed to get.

It is clear from the evidence that the offer and its acceptance as proved in this case constitutes the contract between the parties. The plaintiff made the offer in writing and the defendant accepted it by paroi. The minds of the contracting parties must be deemed to have met upon the basis of the offer and acceptance, and it makes no difference that the writing was not signed by both the contracting parties in this case. The plaintiff’s offer in writing having been accepted and acted upon, the writing, so far as it expresses the agreement of the parties, stands as the contract between them. Long v. N. Y. C. R. R. Co., 50 N. Y., 76; Hinckley v. N. Y. C. & H. R. R. R. Co., 56 id., 429. If we are right in this conclusion, it follows that the writing, so far as it defines and specifies the conditions of the agreement, is conclusive,, and cannot as to such matters, within well settled rules of law, be varied, modified, or controlled by any prior or contemporaneous oral agreement In Engelhorn v. Reitlinger, 122 N. Y., 81; 33 St. Rep., 275, the court reports the old and well settled rule as follows: “ All prior and contemporaneous negotiations and oral promises in reference to the same subject are merged in the written contract, and the rights and duties of the parties are to be -determined by that instrument.”

But this rule is subject to and must be so construed as to give effect to another equally well settled rule, that when the words used in their application to the instrument of which they are a part are not entirely intelligible, oral evidence of the circumstances attending its execution may, as between the parties, be admissible to aid in its interpretation. Can this qualification of the general rule be applied to the contract under consideration? The language is: “We guarantee the above machine to take care of all the pulp produced by four Scott grinders.”

Does this language necessarily import all that can be produced ; the maximum amount capable of production, or the medium or the minimum amount ? To'hold that it meant the maximum, would seem to require the interpolation into the agreement of ¡some positively qualifying word not found in the text of the -agreement; and the same may be said of the medium or minimum. The smallest amount mentioned was one-half ton. The largest amount was five tons per day. There is, therefore, an apparent obscurity or ambiguity in the wording of the written offer, which, we think, justified the admission in this case of evidence tending to show what the parties intended and understood to be the production by four Scott grinders. In Schmittler v. Simon, 114 N. Y., 176; 23 St. Rep., 160, upon the subject of the admis.sibility of oral evidence to interpret a writing, the court says: “ For the purpose of construing the instrument, no words can be added to or taken from its provisions; but when the words used in their application to an instrument, of which they are a part, are not entirely intelligible, oral evidence of the circumstances attending its execution may, as between the parties, be admissible to aid in the interpretation, in its application of the language used;” in this case a draft somewhat ambiguous in terms, in which the ■drawee is named as executor, with directions to charge against the drawer of his “ mother’s estate.” It was held that paroi evidence was competent to show against what fund the draft was drawn. Schmittler v. Simon, supra; Fish v. Hubbard, 21 Wend., 651; Field v. Munson, 47 N. Y., 221.

Within the principle of these cases, we think the evidence offered in this case was competent, and that the objection to its reception was properly overruled. The same reasons apply to the ■evidence of correspondence between the parties; they were competent as bearing upon questions of production as understood and agreed between the parties.

Nor do we see any error in the charge of the trial judge as bearing upon that question or his refusals to charge. The defendant insists that the court erred in excluding evidence offered by it on the question of damages. The proposition was that by reason of the machine failing to fulfil the terms of the guarantee, in. not making the pulp fifty per cout dry, the weight of the manufactured article was increased and in consequence of such increased weight the expense of transporting the pulp was greater, and that that difference constituted an element of damage, to be-recovered in the action. This evidence was, I tkmlq properly excluded by the judge.

The ordinary rule for the measure of damage on a breach of warranty is the difference in value between the article as recommended and as it really was. The defendant elected to retain the machine and not return the same, and under the circumstances of this case, if there is a breach of warranty, must make its claim for damages under this rule, and, as we think, cannot recover for remote consequential damages which it may claim to have sustained by the use of the machine. When a sale of goods is made in good faith, with warranty of quality, a vendee is not bound to rescind the contract, but may retain the goods and rely upon the warranty. Brigg v. Hilton, 99 N. Y., 517. This is what the defendant has done in this case and it can invoke only the ordinary rule applicable to damages in breach of warranty.

That rule is stated above. Muller v. Eno, 14 N. Y., 597; Voorhees v. Earl, 2 Hill, 288; Cary v. Gruman, 4 id., 625.

Various requests to charge on the question of damages wez’emade by the defendant and refused by tlze court and propositions were charged to which the counsel for the defendant excepted, but we find no error in the charge for which we should interfere with the judgment The jury found with the plaintiff upon the question of guarantee of capacity of the machine and as the case is here upon a bill of exceptions, no questions of fact are open for our consideration. On the whole case we see no error for which the judgment should be reversed.

Judgment affirmed, with costs.

Landon, J.

The acceptance of this written proposition being oral, the declarations of the defendant accompanying that acceptance azzd defining such of the terms of the proposal as would be unintelligible without definition are part of the acceptance and thus part of the contract.

The written proposition with guaranty to take care of all the pulp produced by four Scott grinders ” requires evidence of the productive capacity of such grinders in order to make the contract intelligible. The evidence shows that such grinders are of different capacities. If the parties fixed a capacity as the basis of their agreement, proof of that fact affords us the measure of the capacity refeired to in the written proposal. The declarations of the defendant during the negotiations stating that capacity upon which the plaintiff relied in making the proposal are the best evidence of it as between the parties. Such declarations do not vary the writing; they interpret it.

In Corse v. Peck, 102 N. Y., 513 ; 2 St. Rep., 493, the oral testimony did not interpret the writing: it varied it from a contract “ to run steadily” to a contract to “ run often enough to deliver 500,000 brick a month.”

In Engelhorn v. Reitlinger, 122 N. Y., 76; 33 St. Rep., 275, the oral testimony offered was not to interpret the contract but to introduce a new condition into it. These cases are not in conflict with the ruling in this case; they serve to illustrate its propriety. There was no error in the exclusion of evidence by the defendant touching the increased freight charges the defendant was obliged to pay because of the failure “ to deliver the pulp 50 per cent dry.” This seems to have been one factor tending to show actual damages, and it was accompanied with offers of evidence tending to show that the guaranty of such dryness was made with reference to the location of the defendant’s mills with respect to facilities of freight transportation. The actual production was forty-five per cent dry, and plaintiff gave evidence tending to show that that was more economical from a business point of view than fifty per cent dry.

The defendant did not offer to show that the net result of all the advantages and disadvantages of the forty-five per cent dryness was a loss, but simply offered to show a fact which, without the addition of other related facts, did not appear to be material.

I therefore concur in affirmance.


text:
    James Mussen, Resp’t v. Jehial B. White, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Witness—Credibility.
    The question of the credibility of a witness is for the jury.
    Appeal from a judgment entered upon the verdict of a jury rendered upon the trial at the Essex county court, upon an appeal from a judgment in favor of the plaintiff upon the trial before a justice of the peace.

      Riley & Conway, for app’lt; A. W. Boynton, for resp’t.
   Landon, J.

The question in dispute upon the trial was, how many cords of wood had the plaintiff delivered to the defendant or upon his order ? The verdict rests upon the plaintiff’s testimony, and the defendant urges that upon its face it is inconsistent, contradictory and unreliable. The plaintiff seems to have been confused with, respect to the items, but he testified to enough to justify the verdict, and it was for the jury to determine whether his testimony was reliable.

We see no ground for reversal.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.