Rudiger v. Coleman

• Decision Date: 02 March 1920
• Citation: 126 N.E. 723,228 N.Y. 225
• Parties: RUDIGER et al. v. COLEMAN et al.
• Court: New York Court of Appeals Court of Appeals

228 N.Y. 225

126 N.E. 723

RUDIGER et al.

v.COLEMAN et al.

Court of Appeals of New York.

March 2, 1920.

Action by Eugene A. Rudiger and another against James S. Coleman and others. Judgment of the Special Term for plaintiffs was modified and affirmed by the Appellate Division (184 App. Div. 897,170 N. Y. Supp. 1109), and plaintiffs appeal, with notice of intention to bring up for review intermediate orders and judgments which affected the final result.

Judgment modified, and, as modified, affirmed.

See, also, 184 App. Div. 948,170 N. Y. Supp. 1110; 199 N. Y. 342, 92 N. E. 665; 225 N. Y. 662, 122 N. E. 223.Appeal from Supreme Court, Appellate Division, Second department.

John C. Wait, of New York City, for appellants.

Morgan J. O'Brien and Charles Haldane, both of New York City, for respondents.

CARDOZO, J.

The plaintiffs in the year 1899 were the owners of a tract of land of about 130 acres in Westchester county, known as the Field farm, and had a contract for the purchase of another tract of about 15 acres, known as the Horton farm. In June, 1899, they made a contract to convey to the defendants their rights in the two farms. The defendants were to assume a mortgage on the Field farm and pay $3,000 in cash. They were also to assume the performance of the contract for the Horton farm. Within six months after the delivery of the deed and the assignment of the contract, they were to form a corporation, known as the Quarrying Company, for the purpose of quarrying and selling granite, with the plaintiffs and the defendants as incorporators. The corporation was to receive a conveyance of the Field farm, and in payment thereof was to issue its stock, 40 per cent. to the plaintiffs and 60 per cent. to the defendants. The corporation was also to have the right to receive a conveyance of the Horton farm upon payment to the defendants of any moneys expended by them in completing the purchase. Until the corporation was formed, the defendants were to have the right to take out of the farms for their own use so much stone as might be necessary for the erection of the new Croton dam. After the conveyance to the corporation, a like right was to be reserved to them. Stone in excess of those needs was to belong to the corporation, which would quarry it for the stockholders. If there was a lease of any part of the land which the plaintiffs were conveying, the rent was to be divided, 40 per cent. to them and 60 per cent. to the defendants, until the conveyance to the corporation, which would then receive the whole. The voluminous contract covers many other details. The foregoing summary suffices for an understanding of this controversy.

The deed and the assignment of contract were delivered in June, 1899. The defendants took out the granite necessary for the dam and completed its construction. They never formed the corporation, which was to take and hold the title. The terms of incorporation had not been settled in the contract, and the plaintiffs and the defendants,the incorporators, were unable to agree about them. In July, 1904, five years after the deed and the assignment, the plaintiffs brought this action. They alleged that the defendants had wasted the lands, and had taken granite for purposes other than the erection of the dam. They also alleged that, through the refusal or failure of the defendants to form a corporation, the contract had become abortive and incapable of fulfilment. Judgment was remanded for an accounting and a reconveyance of the land. There were two trials, but we need concern ourselves only with the second, which took place in October, 1906. The trial justice found that granite had been taken for the dam and nothing else; that the defendants had been guilty of no waste; and, though he also found that there had been no accounting for the rents of buildings, and that there had been an inability to agree upon the terms of incorporation, he refused any relief to the plaintiffs and dismissed the complaint. After affirmance at the Appellate Division (129 App. Div. 916,114 N. Y. Supp. 689), there was an appeal to this court (Rudiger v. Coleman, 199 N. Y. 342, 346,92 N. E. 665, decided in October, 1910). We held that the findings acquitting the defendants of waste, since they had been unanimously approved by the Appellate Division, were conclusive upon us. We held, however, that upon the failure to form a corporation, and the consequent failure of the entire scheme of the contract, the defendants held the title as trustees for the plaintiffs, and were under a duty to reconvey it. We held also that there should be an accounting for the rents received from buildings. We therefore directed that ‘the judgment of the Appellate Division should be reversed, and the judgment of the Special Term modified, so as to direct a reconveyance by the defendants to the plaintiffs of the Field farm, and a reassignment of the contract for the 15 acres of the Horton farm upon condition that the plaintiffs reimburse the defendants for any payments they have made upon the contract for that part of the Horton farm,’ and that ‘the judgment should be further modified, so as to direct an accounting for rents collected by the defendants.’ The remittitur directed reversal of the judgment of the Appellate Division, and modification of that of the Special Term, in accordance with the opinion.

It is at this point that the proceedings, now brought up for review, begin. The defendants moved at Special Term for an order that the judgment of the Court of Appeals be made the judgment of the Supreme Court. They said in their affidavits that it was impossible to make literal compliance with a decree of reconveyance, for the reason that, during the pendency of the appeals, part of the land had been condemned by the city of New York. The plaintiffs' answering affidavits admitted these changes, and asserted others. Even that part of the land to which title had been retained was said to be no longer intact, as it stood in October, 1906. The charge was made that during the pendency of the appeals the defendants having completed the dam, had made sales of granite for other purposes, and the charge was supported by the production of documents alleged to be copies of the defendants' contracts. While this motion for judgment was pending undetermined the plaintiffs made a cross-motion, submitted to the same judge, which they styled a petition for restitution, but which, however they chose to style it, was in reality an application, at the foot of the decree, to adjust to changed conditions the form and measure of relief. The result was the entry at Special Term of a new interlocutory judgment.

[1] There can be no doubt that in some of its provisions it went too far. The defendants could not properly be compelled to litigate anew the charge that in October, 1906, or at any earlier date, they had wasted the plaintiffs' land. They had already been adjudged blameless, the adjudication was untouched by our judgment of modification, and the controversy was no longer open. But there were other provisions of the new judgment which did not go back of the time covered by any past adjudication. The defendants had already paid to the plaintiffs 40 per cent. of the moneys collected for parcels condemned by the city of New York during the pendency of the appeals. The new judgment directed them to pay to the plaintiffs the remaining 60 per cent., with interest, less attorney's fees and other disbursements. The defendants, under cover of the appeals, had taken or sold granite and other products of the farm in violation of their contract. So, at least, the plaintiffs charged, without denial by the defendants, who contented themselves with a protest that the charges were irrelevant. The new judgment directed an accounting in respect of the use of the farms from October, 1906, to the date of reconveyance. From that judgment the defendants appealed to the Appellate Division. The view was there taken that the Special Term was without power to adapt to changed condition the relief awarded by this court, and that its duty was to repeat, with literal fidelity, the terms of our remittitur. Rudiger v. Coleman, 148 App. Div. 682,132 N. Y. Supp. 990.

The provision substituting the proceeds of condemnation for the parcels condemned disappeared from the judgment. The provision for an accounting for the period following October, 1906, also disappeared. All that was left was a general direction that the judgment be ‘modified, to conform to the determination of the Court of Appeals,’ and that ‘the order of reference contained in the judgment’ be modified, ‘so as to direct the referee thereby appointed to take and state the account between the parties of the rents referred to in the opinion of the Court of Appeals and the remittitur from that court, and report the testimony taken with his opinion thereon to the court,’ and that, ‘as, so modified,’ said judgment be ‘affirmed, with costs to the appellants.’ The referee thus appointed to take and state the account of rents divided the rents into two periods, those collected before October, 1906, and those collected since that time down to the date of the reconveyance. He held that in both periods 40 per cent. and no more belonged to the plaintiffs, and that the residue, 60 per cent., might be retained by the defendants. Upon this report, final judgment was entered; the defendants being permitted to set off against the rents the moneys expended in the purchase of the Horton farm with interest from June 16, 1911, the date of reconveyance. That judgment was modified at the Appellate Division in details which, for the moment, it is unnecessary to go into and, as modified, affirmed. Some of the interlocutory orders and judgments necessarily affected the final judgment. Code Civ. Proc. § 1316. The plaintiffs come to this court with notice of intention to review them all.

[2] (1) We think the form and measure of relief should...