26 N.Y.S. 299 | N.Y. Sup. Ct. | 1893
This action has been here on a former appeal. 10 N. Y. Supp. 714. The questions as to the eviction of the plaintiff •and the admissibility in evidence of the acts of the forest commission were then considered by this court. The only question we deem necessary to consider at this time is whether the court was justified in finding that the consideration for the bond in suit had totally failed, and, therefore, that the plaintiff was not entitled to recover. This decision was based on the theory that there had been a complete eviction of the grantees under a paramount title, and hence their representatives were entitled to recover of the obligee in the bond, who was their grantor, the full sum of the consideration price .mentioned in the deed to them, with interest; so that no recovery
Upon a new trial it may appear more clearly what amount of timber, if any, was removed subsequent to the change of the title to the premises, and thus it may be determined whether the defendants are entitled to be allowed more than the proportion which the value of the land bore to the value of the land with the timber. Judgment reversed, and a new trial granted, with costs to abide the event. Ail concur.