Finck v. Lamphere

Foote, J. (concurring):

On the pleadings the defendant receiver had the affirmative of establishing that the property in question had been expressly, or by necessary implication, determined to be personal property of the Canadaway Fertilizer Company by the judgment in the foreclosure action, and not to have been so affixed to the building as to be apart of the real property involved in that action. On this record I think it cannot be fairly said that the question was so decided. It is true that evidence was given upon both sides upon the question, and that the defendant receiver had alleged in his answer that certain portions of this property had been affixed to the building for trade purposes and could be removed without injury to the building, and that it was personal property which should, therefore, be sold separately from the land under the mortgage and the proceeds paid to the receiver, but by the judgment no sale of the mortgaged premises was ordered. On the contrary, the mortgage and the *833deed from plaintiffs to the fertilizer. company were adjudged fraudulent and void and the title to the real property revested in the plaintiffs and plaintiffs were required to restore the consideration they had received. Thus the receiver was awarded the principal relief which he had asked in his last amended answer. To be entitled to this relief it was necessary for the receiver to prove that the claims of the creditors whom he represented could not be satisfied from the assets of the corporation, unless he was awarded that relief, and it seems to be a fair inference from the record that the 19th and 20th findings of fact in the foreclosure action were made to show that the other assets of the corporation were not sufficient to satisfy the claims of creditors.

The 19th finding of fact is in substance that claims of creditors amounting to $14,877.09 had been presented to the receiver “ which remain due, owing and unpaid to the creditors of said Canadaway Fertilizer Company.”

Then follows the 20th finding, which is “ that the total assets of said corporation consist of the real property described in the complaint and certain personal property situated on the premises described in the complaint, being ” (then follows a list of enumerated articles, some, but not all of which, are articles which the plaintiffs claim to be fixtures and part of the real estate).

The next finding of fact is that the fertilizer company i& insolvent.

Some of the articles named in the 20th finding are so plainly articles of personal property, such as one twelve-foot ladder, one iron, wheelbarrow, one ton iron junk, and 700 pounds asbestos, that no court would consider it necessary to make a formal finding as to their character as personal property to prevent their being considered a part of the real property.

The inference seems reasonable and proper that the 19th, 20th and 21st findings of fact were made to show the standing and right of the receiver to affirmative relief in the action in behalf of the creditors whom he represented, and not for the purpose of determining as between the parties that the articles enumerated in the 20th finding were not so affixed to the building as to have become part of the real property. While *834that question was presented by the pleadings, and might properly have been decided, the question is: Was it in fact decided ? Does it appear from, this record that it was decided % Its decision was not necessary to support the judgment which was ordered. The title to the real property was restored to the plaintiffs. The question as to whether any of the articles enumerated in the 20th finding had become fixtures and so passed to the plaintiffs might well have been left to be the subject of another action, if that should become necessary, if the evidence then before the court was not sufficient for the determination of that question. That the court did not consider it sufficient may perhaps be inferred by the failure of the trial court to pass upon the question by ruling upon the plaintiffs’ 12th request to find. By that request plaintiffs distinctly called upon the court to rule that certain of the articles in question therein specified “are all permanent fixtures annexed to the freehold in a firm and substantial manner, with the intent and purpose of so annexing them, and with the idea of making a complete manufacturing plant, that all of them are a part and portion of the realty. ” Although the court marked its ruling upon the previous eleven requests, it made no ruling whatever upon this 12th request.

Under these circumstances, I think the true inference is that the question- raised by this 12th request was intentionally left undecided. If, however, the failure to rule upon this request is equivalent to a refusal to find the facts requested, still such refusal is not equivalent to an affirmative firiding to the contrary. (Morehouse v. Brooklyn Heights R. R. Co., 185 N. Y. 520.)

I am, therefore, of the opinion that the judgment in the foreclosure action is not res adjudicata upon the question involved here, and for that reason I vote for a reversal of the judgment appealed from and for a new trial.