(202 N.Y.S.) der the first method, from the amount of a primary principal $778.70, as calculated under the second method, or by subtracting the Thomas income of $221.30, as calculated under the second method, from the total income of $263.86, as calculated under the first method. This was obviously erroneous, and all counsel so conceded on the reference before me, and the contention of counsel for Mrs. Thomas' representative was that it was res judicata only in so far as it was partially correct and in his favor. I have arrived at my conclusion, first, by a study of the decision of the Court of Appeals in Lawrence v. Littlefield; and, second, by a close study of the question as to what method is the most just and equitable to all parties. Both considerations point inevitably to an identical result. The Court of Appeals was dealing with unproductive realty. There was no actual income. The question before the court was what should be done with the proceeds of sales "thus and when realized." The method of calculation which it laid down for the division of the proceeds of sales was one fixed primarily by the dates when proceeds were "thus and when realized." The principle of law which led the court to its decision was in the nature of a legal fiction. During the long period between Miss Pinkney's death and the dates when unproductive land was sold, there was only real estate-there was no actual income. The court held that Miss Pinkney's intent was that this unproductive real estate should be treated as undivided principal and income. Obviously, no calculation could be made until the proceeds were actually received, and, also obviously, as one would think, the primary calculation must be made as of the date when they were so received. If we disregard the actual figures contained in the former referee's report and confine ourselves to his opinion, we find that he believed he was adopting the second method of calculation. Thus he says, in his opinion, at page 100 of the printed record, folio 298: "The land or its proceeds ceased, as to Mrs. Thomas, to represent income on the latter's death (August 15, 1914, the date of her own death); and it seems accurate, in her case, to treat the money as though received at the time of her own death." There is nothing in the opinion of the Court of Appeals which would indicate that it can be "accurate" to treat money received on February 7, 1916, as received on August 15, 1914. The necessary result would be to galvanize Mrs. Thomas' income out of any and all sales heretofore or hereafter made, for years to come, at the increasing expense to Mrs. Lawrence's income and to the remaindermen's principal. "Treating" cash received on later dates "as though" received on August 15, 1914, is superimposing upon a legal fiction that which is nothing more or less than an actual fiction. In my opinion, when we have before us a particular sum of money received by a trustee at a certain date, we both under the method of calculation laid down by the Court of Appeals and in fairness to the remaindermen and the other life beneficiary, must first determine, as of that date, what amount is principal and what amount is income. This calculation at once determines the principal for all time. It does not, as does the alternate method, create one principal as of one date and a second principal as of a second date. As already pointed out, the former referee actually adopted this method in part, and first took the sum of $1,000 received on February 7, 1916, and determined, as of that date, what amount thereof was principal and what amount was income. The item $736.14, principal, set forth both in conclusion III and conclusion V, is an item of principal determined, not as of August 15, 1914, but as of February 7, 1616. To that extent the former referee and I are in entire agreement, and counsel for Mrs. Thomas' representative, who urges the defense of res judicata, must necessarily be in entire disagreement. Now, if we have decided the principal for all time, the balance must be income, and, again, I use the term "obvious" when I hold that it is obvious that the only method in which one can fairly divide that income between two beneficiaries is to divide it pro rata according to dates when they would have received it. This follows the principle laid down by the Court of Ap peals, and it is the only equitable method of division. The question is concededly a novel one. Counsel and I have industriously sought for precedents, but there are none. I accordingly tried to employ the most logical and the most just method, and I believe that in the method I have adopted there is no conflict between reason and law. They both demand the decision which I have made. There were several other issues which arose during the reference, but they have all been adjusted, after argument, by consent. Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and MARTIN, JJ. Benjamin R. Buffett, of New York City, for petitioner. Charles P. Northrop, of New York City (Charles S. Clark, of New York City, of counsel), for Keith W. Morris and Hilda C. E. M. Carswell. George W. Thomas, of New York City (David B. Luckey, of New York City, of counsel), for Emery J. Thomas. Elkus, Gleason, Vogel & Proskauer, of New York City (Wesley S. Sawyer, of New York City, of counsel), for Lincoln Trust Co. and Mechanics & Metals Nat. Bank. Patterson, Eagle, Greenough & Day, of New York City (J. R. O'Reilly and Carroll G. Walter, of New York City, of counsel), for United States Mortgage & Trust Co. Frederic H. McCoun, of New York City, for Louis H. Morris. PER CURIAM. Decree affirmed, with costs separately to all parties appearing by separate counsel upon. this appeal, payable out of the principal of the trust fund, upon the opinion of John Godfrey Saxe, referee. Order filed. HARE'S MOTORS, Inc., v. FRED ROEDER MFG. CO. (Supreme Court, Appellate Division, Second Department. January 11, 1924.) Bailment 18(2)—Defendant held to have lien under contract with third party for bodies built for trucks delivered by defendant, as well as for other bodies he was to build. Where defendant had a contract with a third party to build ten bodies for trucks, and plaintiff, the owner of two chassis, delivered them to defendant, with knowledge that defendant was to build and mount bodies on them under its contract with third party, held, that defendant, under Lien Law, § 180, acquired a lien on plaintiff's two chassis and bodies for services rendered and materials furnished on both the bodies for those two chassis and the other eight bodies. Kelby, J., dissenting. Appeal from Supreme Court, Kings County. Action by Hare's Motors, Inc., against the Fred Roeder Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed on the law and the facts, complaint dismissed, and judgment directed for defendant on its counterclaim. Defendant appeals from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 22d day of March, 1923, in favor of the plaintiff, in an action in replevin. Hare's Motors of New England, Inc., a Massachusetts corporation, entered into an agreement with the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (202 N.Y.S.) defendant of October 26, 1920, for the construction of ten truck bodies, and the mounting of the same upon chassis to be supplied by the Massachusetts corporation. Hare's Motors, Inc., a Delaware corporation, on December 17, 1920, and at the request of Hare's Motors of New England, Inc., delivered to the defendant two four-ton Riker chassis. Defendant, pursuant to the order of the New England corporation, mounted the bodies upon the trucks and gave them one coat of paint. It completed for mounting the other eight bodies on December 15, 1920. The New England corporation, on December 21, 1920, wired the defendant that, as their order for trucks had been canceled, the defendant's order for bodies was also canceled. Plaintiff thereafter demanded possession of the two chassis, with bodies thereon, which demand was refused by the defendant, who asserted a lien upon them, and upon the remaining bodies, in the sum of $7,100, which it was conceded on the trial was the fair and reasonable value of the services performed and the material furnished by the defendant pursuant to its contract with the New England corporation. The defendant thereafter, pursuant to sections 201 and 202 of the Lien Law, gave notice of sale and advertised the sale of the two chassis and the bodies, Thereupon the plaintiff, by a writ of replevin, caused the sheriff to seize the chassis, together with the bodies manufactured by the defendant, and brought this action for the possession of the same. The remaining eight bodies were duly sold at public auction, and the proceeds, $963.55, received by the defendant, who now asserts a lien by way of counterclaim upon the two chassis and bodies seized under the writ for $6,163.45, representing the difference between the $7,100, conceded to be the reasonable value of defendant's services and materials, and the $963.55, realized on the sale of the bodies. Argued before KELLY, P. J., and RICH, MANNING, KELBY, and KAPPER, JJ. Charles Burston, of Brooklyn (Louis J. Opal, of Brooklyn, on the brief), for appellant. Bertram L. Fletcher, of New York City, for respondent. RICH, J. It was conceded on the trial that the plaintiff was the owner of the two trucks, the subject of this action, and that on April 6, 1921, and before the date upon which they were advertised to be sold, without prejudice to its rights, tendered the defendant $1,650 in payment of all charges, and demanded delivery of the trucks, but defendant refused to deliver them unless the plaintiff paid the total sum due to it under its contract with the New England corporation. The learned trial court has found that the plaintiff did not make or enter into any agreement with the defendant in regard to the building and mounting of bodies on the two trucks, or to build eight other truck bodies, and that the bodies were not built and mounted on the two trucks, and the remaining eight bodies were not built at the request or with the consent of the plaintiff, the owner of the two trucks. The precise question, therefore, presented for decision upon this appeal, relates to (1) whether or not the defendant acquired a lien for services rendered and materials furnished upon the two trucks only, or (2) in addition for the services and materials furnished pursuant to its contract with the New England corporation for eight other bodies. It is conceded that the trucks were delivered by the plaintiff to the defendant at the request of the New England corporation, and the latter's representative, Baldwin, testified that the chassis were sent to the defendant by the plaintiff, at the request of his firm, for the purpose of having the bodies mounted. It may fairly be inferred, however, from the evidence, that the plaintiff is not in the position of an owner of chattels who has some knowledge that a workman has performed services upon them and only passively acquiesces therein, but rather the plaintiff was an affirmative factor in procuring the improvement to be made. Rice v. Culver, 172 N. Y. 60, 64 N. E. 761. We think that the defendant's services and materials were within the meaning of the statute (Lien Law, § 180) furnished with the consent of the owner, and the defendant acquired an artisan's lien for his services, and materials furnished in connection with the two trucks. But did this lien also extend to the services rendered and the materials furnished in connection with the construction of the eight other bodies under its contract with the New England corporation? Appellant contends it does, inasmuch as the contract for the bodies and mounting was entire, and that as the work was performed under a single contract the lien attached to all things delivered to the defendant under the contract. Wiles Laundry Co. v. Hahlo, 105 N. Y. 234, 11 N. E 500, 59 Am. Rep. 496; Blumenberg Press v. Mutual Mercantile Agency, 177 N. Y. 362, 69 N. E. 641. The question thus resolves itself into whether or not the trucks were delivered to the defendant by the plaintiff under the terms of its contract with the New England corporation. The order for ten bodies was concedediv given by the New England corporation to fill a contract it had with Jones Bros., of New Bedford, to whom the trucks were to be eventually delivered. The New England corporation requested the plaintiff to send the chassis to defendant to mount the bodies for the Jones order. and they were sent to defendant for that purpose. They were delivered to the defendant under the terms of its contract with the New England corporation, and its lien extended to the services rendered and materials furnished and for all the work done under the contract. Conrow v. Little, 115 N. Y. 387, 22 N. E. 346, 5 L. R. A. 693. The authorities cited in support of respondent's contention that, even if the consent of the owner has been established as to the mounting of the bodies upon the two trucks, the defendant could not also subject them to a lien for work on other bodies for a third party, are clearly distinguishable from the case at bar (Barrett Manufacturing Co. v. Van Ronk, 212 N. Y. 90-96, 105 N. E. 811; Moulton v. Greene, 10 R. I. 330), in that in those cases a person, other than the owner of the chattels sought to be impressed with a lien, delivered them to the party who asserted the lien, while in the case at bar the owner, with knowledge that the defendant was to build and mount bodies on them under its contract with the New England corporation, itself delivered them to the defendant. The judgment must be reversed upon the law and the facts, with costs, the complaint dismissed, and judgment directed for the defendant on its counterclaim, with costs. KELLY, P. J., and MANNING and KAPPER, JJ., concur. KELBY, J., dissents, and votes to modify the judgment by allowing a lien on the two chassis for the work done on same by defendant. (202 N.Y.S.) TROWBRIDGE v. OEHMSEN. (Supreme Court, Appellate Division, Second Department. January 25, 1924.) 1. Vendor and purchaser 14-Continuing occupancy by purchaser and making repairs held irreconcilable with claim for rescission. Where purchaser occupied premises for nearly eight months before seeking to rescind, and continued to occupy them during the trial and appeal, without paying interest on the purchase money, or taxes, or assessments, and made repairs and alterations, and before bringing the action refused an offer to sell the property for as much or more than she had paid for it, and in suing for rescission sought recovery of expenses of repairs and alterations, her acts and pleading were irreconcilable with her claims for rescission. 2. Vendor and purchaser weight of evidence. 44-Finding purchase induced by fraud held against In an action to rescind a purchase of a dwelling, a finding that the purchaser was deceived, and thereby induced to purchase the property, held against the weight of the evidence. 3. Fraud 31-Remedies of defrauded purchaser. Where a purchase is induced by vendor's fraud, purchaser may elect to sue vendor for damages, or he may rescind the sale and recover the consideration paid, but he cannot in the same action have both remedies; the two remedies being inconsistent, the first being based on continued existence of the sale, and the latter on its abrogation. 4. Vendor and purchaser 119-Right to rescind must be exercised promptly. The right to rescind a contract for fraud must be exercised immediately on its discovery; delay in rescission or the continued use and occupation of the property being deemed an election to affirm it. Jaycox and Young, JJ., dissenting. Appeal from Special Term, Westchester County. Action by Catherine V. Trowbridge against Katie Oehmsen to set aside a deed, and to cancel and set aside the bond and mortgage made on such conveyance, and to recover the purchase money paid for the real property. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed. Argued before KELLY, P. J., and JAYCOX, MANNING, YOUNG, and KAPPER, JJ. William Baruch, of Port Chester, for appellant. Benjamin I. Taylor, of Port Chester, for respondent. KELLY, P. J. On May 31, 1921, the defendant delivered to the plaintiff a full-covenant warranty deed conveying two lots of land situated at Harrison, in Westchester county, the deed was recorded on June 1, 1921, and plaintiff at once moved into the dwelling house erected on the premises. The conveyance was made pursuant to a written contract between the parties dated May 21, 1921. The consideration was $10,000, which was paid, $1,000 on the execution of the contract, $1,250 on the delivery of the deed, $4,000 by plaintiff taking the property subject to an existing mortgage for that amount, and the balance, $3,750, by a purchase-money bond and mortgage executed and delivered by plaintiff to defendant. The contract for the sale of the property provided: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 202 N.Y.S.-53 |