30 N.Y.S. 1011 | N.Y. Sup. Ct. | 1894
The action is brought to recover damages alleged to have been sustained by the plaintiff through the fraud and deceit of the defendants, in procuring from her a- surrender of her house by falsely representing to her that the paper presented for
The plaintiff claims no interest in the land itself, and it is clear that if she was not the owner of these buildings at the time she was removed, or the steps taken to prevent her removing the building, from which she claimed damages flowed, she could recover nothing. It was therefore essential to plaintiff’s cause of action that she should prove that the house was, by agreement, personal property, and belonged to her. This she sought to do by saying that she owned the house, and that the defendants Cruger & Co., the agents of the owner of the land, knew and admitted that she was the owner. Her statement was a mere conclusion, and the acquiescence of the agents in her statement made to them, that she-was the owner, was at best but proof of an admission on their part,, which would not, however, prevent them, or the owner of the land, from denying that she was such owner, or offering evidence in support of their contention that she was not such owner. Apart from such evidence, it was sought to be shoAvn that some 12 years ago-one Hyland built the cottage or frame building under some arrangement with a Mr. McKesson, who at that time represented the-owner of the fee. This arrangement was in writing, and the witness was not permitted to state its terms, although a foundation was laid for parol evidence of the contents of the agreement by showing that the written agreement itself was lost. This ruling would have been a fatal error, if material upon the question of" ownership. But, if we assume the view most favorable to the-plaintiff,—that by the terms of such arrangement the owner of the-fee agreed with the person who built the house that it was to remain personal property,—this would but fix the rights of those interested in the agreement as of that date, and might be the basis-for showing that such an arrangement was continued, but could be in no way conclusive as to the rights of the parties here, in view of the conceded change in the tenancy of the property, and the transfer of any interest in the house, either by sale to the plaintiff,, or by the removal of Hyland from the premises, prior to the rights-of the parties to this controversy being fixed.
The plaintiff attempted to show that she purchased the house at sheriff’s sale, by producing the auctioneer’s receipt for the-amount paid. This was objected to .upon the ground that sufficient
“If a tenant, having the right to remove fixtures erected by him on the ■demised premises, accepts a new lease of such premises, including the buildings, and enters upon a new term thereunder, the right of removal is lost, notwithstanding his actual possession has been continuous.”
And in the course of the opinion it is said:
“Elementary writers are very well agreed that when a tenant continues in possession under a new lease or agreement his right to remove fixtures Is determined, and he is in the same situation as if the landlord, being seised of the land with the fixtures, had demised both to him.”
It is conceded that the plaintiff was a tenant from year to year since 1888, and her omission to reserve the ownership of the house would have waived her claim, and raised a conclusive presumption that she had parted with her property therein, for, as said in another part of the opinion from which we have quoted (Loughran v. Ross):
“A lease of land and premises carries with it the buildings and fixtures on the premises, and the tenant accepting a lease of the premises without excepting the buildings takes a lease of the land with the buildings and fixtures, and acknowledges the title of the landlord to both, and is estopped from controverting it.”
Upon the trial it was not shown whether the plaintiff’s lease was in writing or by parol; but, whether one or the other, it did not appear that there was any agreement made between the plaintiff and defendants by which, under her last renting of the premises, she reserved the ownership of the buildings, or the right to remove them on the expiration of her term. It will thus be seen that there was a failure of proof on the part of the plaintiff to sustain the first essential fact upon which her whole case necessarily must rest. That the defendants Cruger & Co. thought that she had some interest in the house clearly appears, not only from the correspondence between the parties, but from the fact of the efforts that they made to procure the release. But this impression or notion entertained by them as to plaintiff’s ownership did not estab