Towsand v. Ford , 72 A.D. 621 ( 1902 )

PARKER, P. J.

It appears from the record in this case that most, if not all, of the stone for which the plaintiff has recovered were under and supporting a building at the time the defendants refused to surrender them to the plaintiff. Such building, and the stone upon which it rested, were on premises belonging to the Erie Railroad Company. In 1894 such premises and building were, by such company, rented to Baker for one year, and each year thereafter the leasing was renewed to Baker until 1900. In 1897 a part of the building was destroyed, and the company agreed with Baker that, if he would repair it, he could have the building. I understand Baker did repair it, and thereafter— that is, in 1898'and 1899—the lease was to him of the premises; he owning the building, and leasing the premises merely as a place upon which to keep the building. In 1900 Baker sold all his interest to the defendants Ford, and on July 23, 1900, the Fords took a written lease from the company, which was put in evidence, and is fully set forth in the “case.” It leases to the Fords the premises for one year “as a site for a building.” The Fords then owned the building, and evidently both parties understood the lease to give them the right to maintain their building there for a year, unless the 30-days notice to take it off and surrender the lease was given by the company, as therein provided. The stone in question were all this time supporting the building, and had so supported it since its construction many years ago. The plain purpose of the lease, therefore, was to give to the Fords the right to maintain their building upon the wall on which it then rested; and such stone, as between those parties, were deemed real estate, and passed under the lease. Therefore the defendants, as the lessees, had an interest in the stone, to have them remain there as a part of the realty supporting their building until the end of the year, or until they received the 30-days notice provided for. Such are the circumstances under which, on July 23, 1900, they received from the company the possession of the stone in question. On August 24, 1900, they refused to surrender them to the plaintiff.

Did the plaintiff show a better right to' their possession than the defendants had? I think not. Even if the bill of sale taken by the plaintiff in July, 1897, be deemed to apply to the stone under this building, and even if Sheffer was shown to' be the agent of the company, with power to transfer the title to such stone, yet the defendants Ford, when they took their lease, had no notice, actual or constructive, that the company had parted with its title to the stone on which their building was resting. True, they had notice that the plaintiff had purchased some stone, but they would naturally suppose it referred to the loose stone upon the premises, and hereinafter referred to, and did not understand it to apply to the stone on which the building rested. They evidently relied on such stone being a part of the premises, and that their building might rest upon them as such; and, the company then being in possession of such premises and stone, they had the right to assume that it owned both premises and stone, and to take a lease of the same. For this reason the defendants’ right of possession was better than the plaintiff’s.

Moreover, the bill of sale given by Sheffer in July, 1897, was not intended to include the stone upon which the building then rested. There was at the time a lot of stone, upon which no building was resting, which had been used as a foundation for that part of the bridge shop that had been taken away. Those stone were no longer used by the company. They could be taken away at once, and were subsequently taken or sold by this plaintiff. Such were the stone referred to in the bill of sale, and sold by Sheffer for $20, and which such' bill of sale requested the plaintiff to remove at once. At that time Baker was leasing the building which stood upon the stone in question from the company, and such lease was thereafter renewed from year to year, as above stated; and it is clear that Sheffer did not intend, by the request made in that bill of sale, “Please remove this material,” that the plaintiff should enter on the premises then rented to Baker, and tear out the stone from under the building Baker was then occupying. The circumstances of the transaction, as they appear in the record, all indicate that the stone in question—those upon which the building was then resting—were not intended to be included in that bill of sale. The evidence does not warrant that conclusion, and therefore the plaintiff has not established a right to demand them from the defendants.^

The judgment must be reversed on the law and facts, referee discharged, and a new trial granted; costs to the appellants to abide the event. All concur, except KELLOGG, J., who dissents.