I dissent. I think that the judgment should be affirmed, upon the ground that the coal which passed through the mesh remained the property of the plaintiff, as much as was the land. It was excluded by the terms of the agreement between the parties and never became the defendant's property. That was the effect of our former decision. (136 N.Y. 593.) It followed, therefore, that the defendant should pay for it, not at a price measured by the royalties mentioned in the agreement, but according to its value, and as to that the referee's allowance was less than what the evidence proved it to be.
PARKER, Ch. J., O'BRIEN, HAIGHT, LANDON and WERNER, JJ., concur with CULLEN, J.; GRAY, J., dissents.
Judgment modified, etc.