149 N.Y.S. 161 | N.Y. App. Div. | 1914
This action was brought in January, 1905, to recover possession, and damages for the wrongful withholding, of three parcels of land of which the State claimed to be the owner, one of which was lot lio. 37, township 12, old military tract, containing 1,121 acres. The answer pleaded ownership and possession in the defendant. The following month the parties executed an agreement of settlement of the action by which the defendant was to be permitted to take judgment dismissing the complaint and adjudging the defendant to be the owner of the lands described in the complaint, and the defendant was to deed to the State the lands in question together with 1,280 acres of other lands, the defendant reserving to itself the soft wood timber down to eight inches in diameter, with the right to enter upon the lands and cut and remove the timber at any time within ten years from the date of the
In- January, 1914, the State made a motion to vacate and set aside the agreement of settlement of the action, and all proceedings subsequent to the service of the answer, upon the ground that such settlement was collusive and fraudulent, and entered into for the purpose of divesting the State of its timber on lot 37. Thereupon the appellant made this motion, in which the order appealed from was granted, asking for an order providing that the time during which the proceeding instituted by plaintiff’s said motion shall be pending, to wit, from January 8, 1914, to and until a final order shall be entered and the time to appeal shall have expired, shall not be any part of the ten years limited by the said deed within which the grantees of the defendant may cut and remove from said lot the timber so reserved.
The appellant claims that equity requires its motion be granted for the reason that the respondent having waited nearly nine years after the time of making the agreement and of the entry of the judgment before making the motion, insufficient time of the ten years’ period will remain after the ultimate determination of the motion within which to cut and remove the timber, which the appellant values at from $25,000 to $50,000, and hence that even should the appellant be successful in the end, it and its grantees will he deprived of the right to take the timber as completely as though the decision of the motion had been adverse to the appellant. The respondent, however, claims that its action in moving to vacate the settlement and the judgment founded thereon has in no way restrained or affected the right of the appellant to cut and remove the timber; and that if at the time of the settlement the appellant had the right to cut and remove the timber, it still has that right.
It is true that the proceeding taken by the respondent has
We think the decision of the Special Term denying appellant’s motion was correct and should be affirmed. Should the
The order should be affirmed, with costs, but without prejudice to the appellant making further application for such order or relief as it may be advised.
Order unanimously affirmed, with costs, but without prejudice to the appellant making further application for such order or relief as it may be advised.