224 A.D. 366 | N.Y. App. Div. | 1928
An interlocutory judgment herein directing the sale of mineral rights and a distribution of the proceeds among those adjudged to be the owners thereof, has been affirmed by this court (207 App. Div. 870) and the Court of Appeals (238 N. Y. 568). This motion to resettle and modify the order and decisions of this court arose out of the appeal from the final judgment. Thus it was an effort to review the same questions which had been decided. If no other questions had been involved, the affirmance of this final judgment would have followed the earlier decision. There was included, however, an appeal from an order denying a motion for a new trial upon the ground of newly-discovered evidence. A majority of this court decided that the motion should have been granted. (224 App. Div. 306.) The new evidence bears upon the ownership of twelve-thirteenths of the fee to the talc deposits
The new evidence concerns only the ownership of the fee of twelve-thirteenths of the talc, talcous rock, soapstone and other similar substances. Appellahts argue that the decision of that question will involve the legality of the option upon which the title of the Northern Ore Company depends, because as a matter of law, all cotenants must join in conveying a part of the common property, and that if it be determined that this option does not include all of the mineral rights owned in common, it is invalid. This claim was answered adversely to these appellants upon the appeal following the first trial in this case (194 App. Div. 827). Upon that appeal the Northern Ore Company only claimed to have an option to purchase mineral rights other than talc from the owners of twelve-thirteenths thereof (pp. 829, 836, 837) and that decision was afiirmed by the Court of Appeals (231 N. Y. 548). In view thereof, it seems unnecessary to multiply citations showing that the potential grantee for value under an option from a part of the common owners had, as a defendant, equitable rights which would be recognized.
The issue as to the ownership of the fee to the talc is separate and independent from the other issues, which have been fully litigated and decided, and a trial of that alone is proper. (City of Buffalo v. D., L. & W. R. R. Co., 176 N. Y. 308; Altman v. Hofeller, 152 id. 498; United Paperboard Co. v. Iroquois Pulp & Paper Co., 216 App. Div. 639.)
A sale of all the mineral rights has been made, subject to the talc leases, dated September 3, 1892, and October 15, 1910, held by the defendants Union Talc Company of Gouverneur and the International Pulp Company. The fee of the talc remaining after
The decision herein should provide for the trial of the one issue mentioned. The order therefor should contain provisions carrying out the terms of the stipulation.
Hinman, Davis, Whitmyer and Hasbrotick, JJ., concur.
The order of reversal and for a new trial, entered in the clerk’s office of this court on June 26, 1928, and in St. Lawrence county clerk’s office on June 29, 1928, is resettled, modified and amended so as to provide that the only issue upon which a new trial is granted is whether all of the talc, talcous rock, soapstone and similar substances contained in the premises were excluded from the lease and option or only so much of said talc, talcous rock, soapstone and similar substances as was covered by outstanding leases in effect September 13, 1903.
The final judgment appealed from, as so modified and as further modified by the stipulation filed on this motion by defendant Northern Ore Company, is affirmed, with one bill of costs to the appellant.
Motion for reargument is denied. Order to be settled before Hill, J., on five days’ notice.