187 A.D. 131 | N.Y. App. Div. | 1919
The order under review was made under section 3378 of the Code of Civil Procedure, to determine conflicting claims to moneys on deposit in the Marine National Bank of Buffalo, N. Y., representing an award of damages in a condemnation proceeding. The controversy aeróse over the claim of the appellant, the People of the State of New York, that one John J. P. Read, at the time of his death, owned the real estate acquired by the petitioner in the proceeding and that, although he left a will, he died intestate as to such real estate and the same escheated to the State, on the one hand, and the claim, on the other hand, that the property belonged to Edmund P. Cottle and others, the respondents. The referee to whom the matters in dispute were referred made a report accompanied by an opinion, in favor of the appellant. Upon the hearing at Special Term upon the motion made by the appellant to confirm that report, the court made the order appealed from, deciding that the respondents Cottle and others were entitled to the moneys.
Such real estate was a piece or parcel of land situate in the city of Buffalo, 93 feet wide in front on the northerly side of Carroll street and the same width in the rear and 100 feet deep.
The condemnation proceeding in which the order under review was granted was begun in February, 1914. The
On or about the 13th day of April, 1883, John J. P. Read was the owner in fee and in possession of this land, and on that day the New York, West Shore and Buffalo Railway Company presented to the Supreme Court at a Special Term in the city of Buffalo its petition under the General Railroad Law of 1850, as amended by chapter 198 of the Laws of 1876, in a proceeding instituted to acquire title to all of the land above described, except a strip one foot in width on the northerly end thereof, with proof of service of the same upon Read and others, whereupon such proceeding was adjourned from time to time until the 1st day of September, 1883.
On the 31st day of May, 1883, and while such proceeding was pending, John J. P. Read made a contract in writing and under seal with the railway company for the sale by him to the company of the real estate described in the petition for the sum of $13,500 payable within one month from the date of the contract. The contract provided that upon payment of the purchase price, Read was to convey the property by a full covenant deed to the company. In this contract Read covenanted to save the company harmless from certain
On the 31st day of May, 1883, there were outstanding and unpaid taxes and local assessments levied and assessed against this property during a period of many years and to a large extent, and there also were outstanding tax sales of the property.
In July, 1883, the railway company tendered the purchase price to Read and demanded the conveyance that he had undertaken to deliver and called upon him to pay the taxes which he had undertaken to pay in his contract. Read failed to pay the taxes. Later in the month of July, 1883, the railway company tendered to Read a deed to be executed by him to it and Read refused to execute the deed solely upon the ground that it failed to contain a provision for the payment by the railway company of the city tax for the year 1883. Thereafter and on the 30th day of July, 1883, Read tendered to the railway company a deed of conveyance of the land in question containing the covenants referred to in the contract and demanded payment of the purchase price. The railway company refused to accept the deed on the ground that the taxes which were hens on the property on the 31st day of May, 1883, h'ad not been paid.' The railway company on the 3d day of September, 1883, applied to the court for the appointment of commissioners in the condemnation proceeding already referred to and which had been held by adjournment to that day. Read appeared in the proceeding and interposed a verified answer in which he set forth the making of the contract for the sale of the land referred to and that he had done everything in his power to carry out the contract on his part and charged that the railway company had declined and refused to carry out the contract on its part. The issues raised by the answer were thereafter tried at Special Term and decided in favor of the railway company, and thereupon the court made an order appointing commissioners to ascertain and appraise the compensation to be made to the owners or persons interested in the property
On or about the 9th day of June, 1884, in an action to foreclose a general mortgage on the property of the railway company, Theodore Houston and Horace Russell were appointed receivers of the property of the railway company.
Thereafter and on the 30th day of September, 1884, the receivers deposited in the Erie' County Savings Bank in the city of Buffalo the amounts required to be deposited by the order of confirmation to protect the city and county against claims for taxes with interest thereon. The balance of the award directed to be paid to Read was never paid.
In the month of July, 1885, Read began an action in the Supreme Court against the railway company and the receivers in which the complaint set forth the condemnation proceeding above referred to and the failure of the railway company to pay him the amount awarded to him therein. There was
“ That this plaintiff has the possession of said land and a lien upon the same for money due and unpaid as aforesaid and the said- corporation, although often requested since said money became due, has hitherto neglected and refused to pay the same or any part thereof.
“ Wherefore the plaintiff demands a judgment of this Court whereby the said defendants and all persons claiming through or under them subsequent to the commencement of this action shall be barred and foreclosed of and from all right, title, interest, claim and demand whatsoever in and to said land and premises and every part and parcel thereof and for such further or other relief as the cotut shall deem proper in the premises,” etc.
The defendants interposed an answer to the complaint in which some of the allegations of the complaint were denied and there were set forth the contract made by Read for the sale of the property to the railway company already referred to, Read’s failure to perform the contract on his part and a counterclaim for alleged damages sustained by the railway company owing to the failure of Read to perform the contract of sale on his part, such damages being the expenses attending the continuation of the condemnation proceedings and the difference between the contract price and the award. In the prayer for relief the defendants demanded judgment that the complaint be dismissed, or that the defendants’ damages be deducted from the plaintiff’s claim and upon payment of the balance the defendants be permitted to redeem the land and the plaintiff ordered to convey the same to the defendants, or that the land be ordered sold to satisfy any liens the plaintiff might have thereon; that the amount of such hens be adjusted by deducting from the plaintiff’s claim the amount of damages sustained by the defendants because of the plaintiff’s breach of his contract to sell to the defendant railway company such land; and that the defendants have such other or further relief in the premises as to the court shall seem just and proper.
On the 24th day of December, 1891, Read executed and dehvered to one Samuel Wasson a bond for the payment of $3,000 within five years from the date thereof, or sooner, with interest, and a mortgage to secure the same covering with other premises the land in question. This mortgage was recorded in the Erie county clerk’s office on the 29th day of December, 1891.
Read died on the 1st day of February, 1896, leaving a last wih and testament and a codicil thereto, but intestate as to his real estate. The will was dated March 9, 1894, and what purports to be a copy of the same appears in the record. The codicil was executed January 3, 1896, and a copy of the same appears in the record.
Dr. Clayton L. Hill and Rowena, his wife, both being mentioned as legatees, and the former as a devisee in the original will, and Dr. Hill, being one of the executors, contested the codicil in the Surrogate’s Court. As the result of the contest both the will and codicil were admitted to probate aqd letters testamentary thereon were issued to Octavius O. Cottle and Dr. Clayton L. Hill as the executors thereof on the 4th day of June, 1896.
On the 14th day of July, 1896, at the Erie Special Term of the Supreme Court, an order was made reviving the action brought by Read against the New York, West Shore and
After the probate of the will and codicil, Clayton L. Hill and Rowena, his wife, brought an action against Octavius O. Cottle as executor of such will and codicil to set aside the codicil. While this action was pending, Octavius O. Cottle and Clayton L. Hill, for the purpose of settling their differences, entered into several agreements in writing. One of these agreements, dated June 18, 1898, recited the death of Read and that he was indebted to each of the parties; that a considerable portion of Read’s estate consisted of real estate much of which had been sold for taxes and against which there were tax liens of questionable validity; that owing to the amount of such claims and the complicated condition of the assets of the estate and other indebtedness it was probable that the proceeds of the estate would be insufficient to satisfy all creditors; and that various suits and proceedings relating
On the 28th day of June, 1900, the Surrogate’s Court of Erie county, in a proceeding for that purpose, allowed a claim presented by Clayton L. Hill against the Read estate for the sum of $54,229 and in the decree it was recited that the same was made without prejudice to the right of the State of New York, or of any other person interested in Read’s estate to be heard on the final accounting.
On the 26th day of November, 1902, Hill executed and delivered a bond in the sum of $1,800 and a mortgage covering an undivided one-half interest in the premises in question, with other lands, to Josiah G. Munro as collateral security for the payment of $1,800, upon which there remained unpaid on the 26th day of December, 1916, the sum of $2,664.
On the 25th day of December, 1905, Clayton L. Hill died intestate leaving three children as his only heirs at law and next of kin, to wit, Florence R. Hill, Robert C. Hill and Evelyn C. Hill.
On the 28th day of December, 1905, Octavius O. Cottle, as sole surviving executor of the last will and testament of John J. P. Read, executed and delivered a deed of the premises here in controversy to his daughter, Marion W. Cottle, for the expressed consideration of one dollar.
Octavius O. Cottle died on the 25th day of February, 1912,
The evidence fairly establishes the fact that both Octavius 0. Cottle and Clayton L. Hill were large creditors of John J. P. Read at the time of his death. Read lived with Hill and his family for many years. Hill had concededly devoted a large part of his time in the service of Read. Cottle had been for years Read’s counsel and had performed services for Read in many litigations. Read’s will recognized his indebtedness to Cottle. Read’s will indirectly recognized his obligation to Hill. It is to be observed that that will stood down to the 3d day of January, 1896, when he made the codicil withdrawing his bequests and devises to Hill and his wife. Read died February 1, 1896, less than a month after the change made by the codicil. There is nothing to show what brought about this change but I think we may consider all the circumstances as bearing upon the attitude of both Cottle and Hill in their treatment of Read’s estate in view of its peculiar condition and their rather unusual relation to it.
(1) The appellant urges that the learned justice at the Special Term was without authority to disapprove the facts found by the referee in his report. Section 3378 of the Code of Civil Procedure, under which the order of reference was granted, is as follows: “ If there are adverse and conflicting claimants to the money, or any part of it, to be paid as compensation for the property taken, the court may direct the money to be paid into the court by the plaintiff, and may determine who is entitled to the same, and direct to whom the same shall be paid, and may, in its discretion, order a reference to ascertain the facts on which such determination and direction are to be made.”
The order of reference, after naming the referee, indicated the duty he was to perform as follows: “ To hear the proofs submitted by the parties hereto in regard to the right, title and claims of the various defendants to the award or fund now on deposit with the Marine National Bank of Buffalo, and the liens upon claims and set-offs against said fund, and
It will be observed that the order of reference does not follow the language of the statute. It may be that the justice at Special Term, in making the order, intended to limit the power of the referee. It may be that he had no such intention. It is argued by the appellant that the power of the referee was plenary as to the facts and that the Special Term, upon the motion to confirm the referee’s report, had no right to disapprove the findings upon the facts and make its own findings. We need not pass upon this question because we are clothed with authority to disapprove the findings of fact made by the referee, in any event, and we may adopt or reject his findings or those of the Special Term if the evidence requires such action on our part. What the propriety of the exercise of such authority by us might be in a case where there was a sharp conflict in the testimony of Witnesses called at the trial and where important facts were to depend, upon the veracity of witnesses, there is no conflict of that nature in this case, so that we are free to make such findings upon the evidence as the same in our judgment warrants.
(2) The counsel for the appellant argues, and he has in his support the backing of the report of the learned referee, that the land condemned was real estate of which John J. P. Read died seized in fee; that as to the same Read died intestate, although he left a will which was duly probated; that he left sufficient personal property to pay his debts and legacies; that he left no widow or heir at law; and that this land escheated to the State of New York.
We shall first consider the status of that portion of such land as was the subject of the condemnation proceeding taken by the New York, West Shore and Buffalo Railway Company in the year 1883, to wit, all of the land condemned in the proceeding in which the order under review was made, except a strip one foot in width from the northerly or rear end thereof.
It already appears that the proceeding taken by the West Shore was taken pursuant to the General Railroad Law (Laws of 1850, chap. 140, §§ 14-21, as amd.), section 18 thereof having
But there is another aspect of this case which seems to me conclusively to show that the relation of vendor and vendee existed between Read and the railway company. In the action brought against the West Shore and its receivers to foreclose his lien for the amount of the award in the West Shore condemnation proceeding referred to in the foregoing, the defendants set forth in their answer the contract made
It is well settled that the owner of the real estate from the time of the execution of a valid contract for its sale is to be treated as the owner of the purchase money and the purchaser of the land is to be treated as the equitable owner thereof. The purchase money becomes personal property.
One of the conclusions of law in the decision in Read against the West Shore and its receivers was to the effect that Read had waived the hmitation of the time for the fulfillment of the contract by the railway company which is specified in the contract itself. The effect of that adjudication was that Read should specifically perform his contract.
We conclude that at the time of the death of Read his interest in the land condemned in the West Shore proceeding was personal property and that it, therefore, passed to his executors.
i (3) We do not think that the executors of Read’s will were guilty of bad faith in prosecuting the appeal taken by him from the judgment in the action brought by him to foreclose his hen for the award in the West Shore condemnation proceeding. The appeal had been taken by Read, and, although it had been permitted to slumber for a long period after it was taken, we do not discover any basis for the claim that it was prosecuted after his death in bad faith.
(4) The purchase of this land at public sale in the foreclosure action by Cottle and Hill individually was not fraudulent. The property was subject to a large amount of taxes and had been sold at tax sales and did not seem to invite purchasers. Cottle and Hill were large creditors of the Read
(5) The appellant argued that it had at least established the escheat of the strip of land one foot in width on the north or rear end of the lot which has been condemned in the proceeding in which the order under review was granted. The claim is made that the justice at Special Term overlooked this strip of land. This may possibly be true, but it is more probable that he regarded it as negligible. If we were to adopt the rule that a small part of the land is worth such proportion of the value of the whole lot as such part would bear to the whole lot, then this strip of land would be worth one-hundredth part of the whole award of $15,000, or $150. But we would not be justified in adopting any such rule. This strip of land is of doubtful commercial value, probably of so little value as to be negligible. However, whatever its value may be, it is represented by the money on deposit in the bank. As it is reasonable to believe that the indebtedness of the Read estate to the Cottle and Hill estates amounts to more than the value of the property of the Read estate, and as the next of kin of Cottle and Hill would be entitled to follow the money representing the value of this strip of land into the hands of the heirs at law of Read, or into the treasury of the State, the result reached by the Special Term should not be interfered with. It is a short cut to a just result.
It follows from the foregoing that new findings must be made to conform to this opinion, the findings of the referee at variance therewith disapproved, and the order appealed from affirmed, with costs.
All concurred.
Order affirmed, with costs. Order to be settled before De Angelis, J., on two days’ notice, at which time proposed new findings to be made and findings to be disapproved may be submitted.
