Reed v. Canastota Northern R. Co.

Hardin, P. J. In respondent’s argument, to sustain the judgment, he cites the celebrated case of Day v. Railroad Co., several times. That case was reported first in 31 Barb. 548, next in 53 Barb. 250, and next in 51 N. Y. 583. Thereafter a new trial of the case was had, and it came to this court, and was examined, and the opinion of this court was prepared by me, and appears in 22 Hun, 412, and from the statement of facts and the opinion so appearing it is manifest that the case is quite unlike the one before us. Our. decision was affirmed in 89 N. Y. 616. In that case, in 1855, the plaintiff and defendant entered into an oral agreement by which the former conveyed to the latter certain lands and a right of way over other real property, and the latter agreed to lay a separate track to the adjoining lands of the plaintiff, and to bring the cattle and stock which might come to it from the west to the said plaintiff’s lands, to be there fed and cared for. The plaintiff conveyed the land and right of way to the defendant, but the latter shortly thereafter repudiated the agreement, and failed and refused to bring the cattle to the plaintiff’s yard. We there held, viz.: “In this action brought by the plaintiff in 1857, to recover the damages occasioned to him thereby, that, as the paroi agreement was void, because it was not to be performed within one year, the plaintiff could not recover the damages occasioned by the breach thereof; that, as the defendant has repudiated the agreement after a partial performance thereof, the plaintiff was entitled to recover the value of the land and right of way conveyed, after deducting therefrom the value of the partial performance of the agreement by the defendant, viz., the profits made by him from the business brought to him by the defendant.” In the statement preparatory to my opinion it appears: “The plaintiff then amended his complaint by adding a second count, being a common count for land and right of way sold.” We think that ease is quite unlike the one before us, especially if we assume that the referee’s finding of fact is correct that the deed in question never was delivered. If the referee, in the ease before us, had found that there was a delivery of the deed, and that as a consideration for the premises conveyed to the defendant there was to be paid to the plaintiff the sum of $1,800, and the depot and freight house were to be constructed as claimed, and that the defendant had failed to comply with its agreement, we might then have had a case before us somewhat analogous to the case of Day v. Railroad Co. According to the findings made by the referee, if the defendant should pay the damages, allowed by the-referee, to the plaintiff, it would acquire no title to the right of way in virtue of such payment, nor would it have any deed securing to it the ownership of such right of way. It therefore would be liable to a subsequent action for trespass or an action to recover possession of the strip of land in the occupation of the defendant or its lessee. 2. We are inclined to think that the finding of the referee that there was an agreement to pay $1,800, etc., as stated in his findings of fact on that subject, is against the weight of the evidence produced upon, the trial in respect to that issue. It is true the plaintiff testifies to facts which, if believed, would support the finding of the referee; but, on the other hand, there is the testimony of Fred 0. Fisk, a witness, who, in the earlier stages of the case, was called by the plaintiff, who testifies absolutely that there was never any such agreement made; and there are declarations of the plaintiff found in the case [247] entirely inconsistent with his testimony, and declarations which tend to corroborate the version given by the witness Fisk. Besides, the contract signed by the plaintiff in March, 1886, and the deed executed by him the 13th of August, 1886, coupled with the facts and circumstances relating thereto as related by himself, Fisk, Jennings, and Stroud, are quite persuasive that no such agreement was ever made by Fisk as related in the testimony of the plaintiff. 3. If it be assumed that the plaintiff has a cause of action in the nature of trespass against the defendant, then the rule of damage adopted by the referee is erroneous. The referee has allowed testimony as to the value of lands of the plaintiff before the road was constructed (including the 20 acres of land three quarters of a mile from the parcel crossed) against the objection of the defendant, and has allowed evidence of the value of the plaintiff’s premises after the construction of the road. We think the rulings in respect to the rule of damage were erroneous. Amerman v. Deane, (1 N. Y. App.) 30 N. E. Rep. 742; Pappenheim v. Railroad Co., 128 N. Y. 436, 28 N. E. Rep. 518. These views lead to the conclusion that a new trial should be ordered upon the law and facts. Judgment reversed on the law and facts, and a new trial ordered, with costs to abide the event. All concur.