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Second Department, March, 1910.

[Vol. 137.

why the Remsen company should be inflicted with substantial damages for the transfer of its easement rights in the private street to the same rights in a public street. (See Matter of City of New York, 196 N. Y. 286.) It appears that the claim of the Remsen Realty Company to share in the award to be made for the damages was presented to the commissioners together with the title on which such claim was based, and should have been considered by them in determining who was entitled to the award. As was said by Judge RAPALLO in Matter of Eleventh Avenue (81 N. Y. 436, 449), quoted approvingly by Judge VANN in Matter of City of New York (supra): "There would be manifest injustice in awarding the whole compensation to the owner of the fee, in view of the fact that such compensation is ultimately payable by the owners of the adjacent lots in the form of assessments, while no part of these assessments is chargeable to the owners of the fee of the land taken. The adjacent owners would thus be compelled to pay full value for a right of way which they already possessed. * If the compensation paid to the owners of the fee had been merely nominal it would have been equitable to adopt the same rule in respect to the owners of the easement."

*

*

The order must be reversed, without costs to either party in this court, and the proceeding is remitted to the Special Term, with leave to the city of New York or any party to move to set aside the award and assessment, if any, and for a rehearing before the commissioners, or others to be appointed in their stead. If such motion is not made, or if made and denied, application may be made by any party for a rehearing before the same or other commissioners to be appointed, to the end that further evidence may be presented of the title of the appellant to the land lying in Carroll street, and as to any easement of the Remsen Realty Company therein; the proportionate value of the respective interests, and as to the amount to be assessed upon the abutting owners to pay for the improvement.

JENKS, BURR, THOMAS and CARR, JJ., concurred.

Order reversed, without costs to either party in this court, and proceeding remitted to the Special Term for disposition in accordance with opinion.

App. Div.]

Second Department, March, 1910.

HENRY WALDER, Respondent, v. BRIDGET ENGLISH, Appellant.

Second Department, March 31, 1910.

Evidence - landlord and tenant - when lease executed by agent without authority admissible - money had and received.

In an action to recover rents paid in advance under a lease which the defendant claimed had been executed by her husband as her agent without authority, the lease and receipts for the money paid are admissible in evidence although the plaintiff proved no written authority in the husband, for they are competent to show the foundation for the payment of rent by the plaintiff. Where in such action it appears that the husband had authority to lease part of the building and that he received the advance rent in the defendant's presence and with her approval, and she subsequently refused to give the plaintiff pos session, the jury may find that there was an implied promise by her to return the money unless she complied with the conditions of the lease under which she received it.

BURR, J., dissented.

APPEAL by the defendant, Bridget English, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of May, 1909, upon the verdict of a jury, and also from an order entered in said clerk's office on the 11th day of June, 1909, denying the defendant's motion for a new trial made upon the minutes.

Joseph W. Middlebrook [Ellery E. Albee with him on the brief], for the appellant.

Michael J. Tierney and Walter G. C. Otto, for the respondent. WOODWARD, J.:

The plaintiff brings this action to recover damages alleged to have been sustained by reason of a breach of contract on the part of the defendant for the lease of certain premises in Dobbs Ferry. The complaint alleges in substance that the defendant, acting through her husband, James English, as agent, entered into a contract with the plaintiff for the leasing of certain hotel premises in Dobbs Ferry at an annual rental of $900, to be paid monthly in advance, the term being five years; that the plaintiff, at the demand of the defendant, paid $300 upon such rental, and in July, 1907, at the beginning of the term, demanded possession of the premises, which

Second Department, March, 1910.

[Vol. 137. was refused, and continued to be so refused up to the time of the commencement of the action. The complaint demanded judgment for $25 per month during the term and for the $300 paid in advance upon the rental. The answer put all of the material allegations of the complaint in issue, and it developed upon the trial that the defendant had not authorized her husband in writing to enter into the lease for a term of years, and, upon defendant's motion to dismiss the complaint, the motion was granted in so far as it related to the damages alleged for failure to place the defendant in possession of the premises, but was denied in so far as it involved the $300 paid in advance upon such lease. This question was fairly litigated, and there was evidence to show that the plaintiff paid a portion of the $300 to the defendant's husband in her presence, and after a conversation in which the defendant had declared herself as being satisfied with the lease, and the defendant herself admits that she did not make any complaint in the premises until she discovered that her husband had exceeded his authority and had attempted to lease the entire building instead of a portion of it. The learned court charged the jury that the action "is brought by the plaintiff, Henry Walder, against Mrs. Bridget English to recover the sum of three hundred dollars. There was another claim embodied in the pleadings at the outset of the case, but the case has taken such a turn as that by mutual consent there is only one question to be submitted to you, and that relates to whether or not this defendant shall pay back to the plaintiff the sum of three hundred dollars, which was passed from hand to hand on the 11th day of June, 1907.” There was no exception to this part of the charge, and the record indicates that certain amendments to the pleadings, which are not set forth were allowed, with directions that they be inserted in the judgment roll. These were doubtless for the purpose of conforming the pleadings to the cause of action actually litigated. We think the introduction of the lease and certain receipts in evidence, the lease being executed by James English, was not error. The complaint alleged the making of a contract in behalf of the defendant by her husband, James English, and the defendant denied this. It was proper to show that a contract of the nature alleged in the complaint had been made, as one of the steps in showing that it was done in behalf of the defendant, and when the plaintiff failed to

App. Div.]

Second Department, March, 1910.

show that the authority was in writing, as was necessary under the statute, he failed to establish this much of the cause of action alleged, but it was competent as showing the foundation for the payment of the $300, and when the defendant admitted that James English had some authority, and it was shown that he received the $300 in her presence and with her approval, and that she refused to give the plaintiff possession under the lease, there was evidence from which the jury were entitled to find that the $300 belonged to the plaintiff; there was an implied promise on the part of the defendant to return the same unless she complied with the conditions of the lease under which she came into possession of the same. As has been well said she was not entitled to keep both the premises and the money which had been paid to her as the rental of such premises.

The judgment and order appealed from should be affirmed, with

costs.

JENKS, THOMAS and RICH, JJ., concurred; BURR, J., dissented.

Judgment and order of the County Court of Westchester county affirmed, with costs.

MECHANICS AND TRADERS' BANK, Respondent, v. BERGEN HEIGHTS REALTY CORPORATION and Others, Defendants, Impleaded with FRANKLIN L. SHEPPARD and HOWARD R. SHEPPARD, Doing Business as ISAAC A. SHEPPARD & COMPANY, Appellants.

Second Department, March 31, 1910.

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Real property - fixtures - lien of prior mortgage breach of conditional sale by contractor.

Where, without the knowledge of the owner of a tenement house under process of construction, a person furnished the contractor with ranges for heating and cooking purposes, under a contract of conditional sale, they became fixtures when annexed to the realty by the contractor, and are covered by the lien of a prior mortgage given by the owner although the contractor failed to pay the purchase price.

The lien of a mortgage covers all that was realty when the mortgage was accepted as security, and all accessions to the realty except where by valid agreement to which the mortgagee is a party, the character of chattels is impressed upon accessions.

Second Department, March, 1910.

[Vol. 137.

APPEAL by the defendants, Franklin L. Sheppard and another, etc., from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 6th day of January, 1909, upon the decision of the court rendered after a trial before the court without a jury.

William R. Wilson [Charles L. Apfel with him on the brief], for the appellants.

Edward Snyder, for the respondent.

WOODWARD, J.:

The defendants Sheppard appeal from a judgment in favor of the plaintiff in an action to foreclose a real estate mortgage.

In or about January, 1907, the defendant Bergen Heights Realty Corporation was the owner of the mortgaged premises described in the complaint, and at that time made a contract with one Sacks, by the terms of which he was to cause to be installed in a certain tenement house in course of construction on the premises seventy-one ranges for heating and cooking purposes. Sacks bought the ranges from the defendants Sheppard under a contract providing that the title should remain in the vendors until the purchase price was paid; the stoves were installed in the tenement house in the following June, and Sacks did not pay the purchase price in full. Prior to that time, in May, 1907, the defendant corporation mortgaged the premises to secure the payment of the sum of $10,000, and the plaintiff owns this mortgage by assignment. The defendants Sheppard contend that they are not proper parties defendant in the foreclosure action; that the ranges did not become a part of the realty. for the reason that they were sold to Sacks under a contract of conditional sale, which was duly filed, and for the further reason that they were not annexed to the freehold in such manner as to become fixtures. They claim that the judgment operates to deprive them of their property without their consent, and without due process of law.

The ranges were placed upon the premises with the consent and at the request of the owner and mortgagor, who had no knowledge of the agreement between the contractor, Sacks and the defendants. Sheppard. The owner knew at the time the mortgage was given

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