Loeser v. Liebman. The specific articles in question are not with in the meaning of the clause in the lease. Glea son v. McVickar, 7 Cow. 42; Lathers v. Keogh, 109 Ν. Υ. 583. The clause in the lease must be construed most beneficially for the lessees. W. H. Co. v. Hawk, 49 How. Pr. 257; Folts v. Huntley, 7 Wend. 210; Gifford v. F. P. Society, 56 Barb. 114; McAdam on Landl. & Ten. 182; Taylor on Landl. § 81. Andrews, Ch. J. The court found that the defendants had not threatened to remove from the leased premises any of the fixtures mentioned in the lease. This finding was based on conflicting evidence, and, having been affirmed by the General Term, is not subject to review in this court. Upon this finding the complaint should have been dismissed, on the ground that no case had been *167] made for equitable relief. *The complaint sets forth the covenant in the lease of Nos. 10 and 12 Tillary street, Brooklyn, under which the plaintiff claimed that the "fixtures, counters, shelving, boilers, machinery, elevators, and heating apparatus" placed in the building by the defendants could not be removed by them during the term. It was not alleged that the defendants were proceeding to remove the articles mentioned, but the only ground alleged for an injunction was that they threatened such removal without awaiting the expiration of the lease. This ground having been found not to exist, the whole basis of the equitable action failed, and the proper disposition of the case would have been to dismiss the complaint without determining the construction of the covenant; but the trial court proceeded to construe the covenant, and held that it extended only to such articles of the kind mentioned as should be in the building at the time of the expiration of the lease, May 1, 1894. In substance the court held that the lessees were entitled to remove the whole of the fixtures at any time prior to the expiration of the term, and that only such fixtures as they should permit to remain on the premises until that time were subject to the operation of the covenant, and directed judgment in favor of the defendants, dismissing the complaint on the merits, and judgment was entered in conformity with the decision. We do not concur in the construction given to the covenant by the courts below. of the lease the *landlord might de- [*168 sire to continue to rent the premises embraced in both leases as one store, or he might consider it more advantageous that the premises should be divided into separate stores. It is plain that the covenant in question had reference to this situation The option was therefore reserved to the landlord to require the tenants on the ex piration of the lease to erect division walls dividing numbers 10 and 12 into separate stores, or to retain the premises in their existing condition. In case the landlord elected to retain the premises as they were, the tenants were to be released from their covenant to build division walls, but in that case the fixtures were to become the property of the landlord, as they would still be required for the use of the premises as a whole. In case the landlord should require the tenants to build the division walls, then the fixtures were to belong to them, and the right to remove them would necessarily follow. The covenants provided for mutual equivalents. If the tenants were required to build the walls they were to have the fixtures. If not required to build them the landlord was to have the fixtures. In the one case the landlord would take the walls in place of the fixtures, and in the other the tenants would take the fixtures and build the walls. It is also plain, we think, that the landlord could await the expiration of the tenancy before exercising his option. The tenants had bound themselves to erect the walls "at the expiration of the lease," or upon vacating the premises before that time. This covenant is followed by the provision defining the rights of the parties in the fixtures. The construction of the courts below is sought to be sustained upon the words, "in said buildings at the expiration of the lease," which are found in the clause which declares the right of the lessees to the fixtures in case they are required to erect the walls. It is only, as is insisted, fixtures "in the building at the expiration of the lease," which are to become the property of the lessees, and this implies, as is claimed, that only fixtures not removed by the tenants before that time were contemplated as within the scope of the alternative clause. But the alternative clause which regulates the right to require the erection of the partition walls, The lease was for a term of eleven years, of the landlord, in case he elects not [*169 and contained a covenant by the lessees against assigning or underletting, or mak- declares that in that case the fixtures are "to ing any alterations in the new building with out the written consent of the lessor. The lessees were to erect a new building on the leased premises at their own cost, according to plans which had been agreed upon. It is a clear inference from the lease and the cir cumstances that it was contemplated by the parties to the lease, that for the beneficial use of the combined property embraced in become the property of the lessor at such expiration." The words "at such expiration" point the time when the title is to become vested in the landlord, and were not used to limit his right to such fixtures only which might not then have been removed from the premises. If under the option the tenants became entitled to the fixtures their rights the two leases the lessees were to place in were protected by giving them the fixtures the new building a plant for lighting and on the premises at the expiration of the heating the whole premises, and elevators lease, since such as they might have removed communicating with the different floors of before that time they would have had the the combined buildings. On the termination benefit of already. But the right of the Loeser v. Liebman-Kilbourne v. Board of Supervisors of Sullivan County. landlord to take the fixtures in lieu of the walls would have been a barren one if the tenants might rightfully remove them all during the term. There is a little obscurity in the language of the covenants, but, construing them according to their manifest purpose, it was the intention of the parties to subject fixtures placed by the tenants in the building during the term, to the exercise of the option of the landlord at the expiration of the lease. This construction does not involve the inconveniences insisted upon. It would not prevent changes and substitutions from time to time by the tenants of new arrangements made in good faith and in the ordinary course. But they could not, we think, dismantle the premises and remove fixtures to deprive the landlord of the benefit of his option. We think the judgment should be modified by declaring the complaint dismissed, on the ground that no case of equitable cognizance was established, and, as so modified, the judgment should be affirmed, with costs to defendant. All concur. Judgment accordingly. Right of tenant to remove fixtures. See notes to Collamore v. Gillis (149 Mass. 578), 5 L. R. A. 150; Jacksonville v. Ledwith (26 Fla. 163), 9 L. R. A. 70; Overman v. Sasser (107 N. C. 432), 10 L. R. A. 722. The surrender of leased premises by operation of law vests the landlord with the title to any structure thereon. Bedlow v. New York Floating Dry Dock Co. 112 N. Y. 263, 2 L. R. A. 629. A baker's oven so united with the building as to be inseparable without destruction to the one and damage to the other is a fixed and permanent structure, and is not removable by the tenant during his term. Ombony v. Jones, 19 N. Y. 234; Ford v. Cobb, 20 N. Y. 344. Property such as engines, bollers, and machinery put in leased premises by the lessee, under a provision in the lease that he may remove the property at the expiration of the term, retains its character of personalty after annexation. Kribbs v. Alford, 120 N. Y. 519; Potter v. Cromwell. 40 N. Y. 287, 100 Am. Dec. 485; Murdock v. Gifford, 18 N. Y. 28. A tenant may put in an engine and remove It at the end of the term. Andrews v. Day Button Co. 55 Hun, 494. A distinct understanding on the part of owners of land that ice-houses built by a lessee or a part owner should remain personal property is sufficient to make them such. Handforth v. Jackson, 150 Mass. 149. If the tenant neglects until the term expires to remove buildings erected by him he is deemed to have abandoned them. Hedderich v. Smith, 103 Ind. 203, 53 Am. Rep. 509. Fixtures go, at the expiration of the term, to the landlord unless the tenant has during the term exercised his right to remove them. Walsh v. Sichler, 20 Mo. App. 374. A tenant's right of removal of fixtures is lost by acceptance of a new lease without their res ervation. Carlin v. Ritter, 68 Md. 478. *170] *KILBOURNE v. BOARD OF SUPERVISORS OF SULLIVAN COUNTY. taxes, which the county treasurer is required by N. Y. Laws 1869, chap. 907, to use in purchasing town bonds for cancelation or for a sinking fund, need not be presented to the board of supervisors for audit, but an action may be brought directly against the county. In a suit in equity by a town to recover from a county moneys misappropriated by the countty treasurer, moneys misappropriated after the commencement of the action may be recovered. The fact that the municipality has presented its claim to the board and demanded the levy and collection of the tax, and that the demand has been refused, does not confine the remedy of the claimant to a certiorari to review the ac tion of the board, or to a mandamus to compel a compliance with the demand. State taxes collected from a railroad company for the purpose of raising moneys for school purposes, to be distributed by the State treasurer to the school districts of the State, are not school taxes within the exception of N. Y. Laws 1869, chap. 907, providing that a county treasurer shall apply all taxes assessed upon railroads in a town, except school and road taxes, to purchase bonds issued by the town in aid of railroads. The burden is upon a county sued by a town for misappropriation by the county treasurer of moneys which should have been applied to purchase town bonds, to show that the statutory period of limitation has expired since the misappropriation. Recovery by a town from a county in an ac tion at law, of the county taxes, which, under N. Y. Laws 1874, chap. 296, were payable to the railroad commissioners of the town to be applied upon bonds issued in aid of a railroad, is not a bar to a suit in equity to recover State taxes to be applied by the county treasurer, under N. Y. Laws 1869, chap. 907, in purchasing the bonds of the town and canceling them. A PPEAL from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made November 24, 1891, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. Lewis E. Carr, for appellant: The plaintiff's remedy, assuming there was one, was not by an action against the board of supervisors but by mandamus or certiorari. The decision of that body on the plaintiff's claim was final until reviewed and reversed in the proper way and by the proper method of procedure. That method was not by an action at law to recover the moneys claimed. Strough v. Bd. Suprs., 119 N. Y. 112: Bridges v. Bd. Suprs., 92 id. 570; People v. Suprs., 67 N. Y. 109, 114; Osterhout v. Rigney, 98 id. 222, 232, 233; Feople ex rel. v. Barnes. 114 Id. 317; People ex rel. v. Suprs., 51 Id. 401: People ex rel. v. Suprs., 70 id. 228, 233; People ex rel. v. Suprs., 56 Hun, 459; People ex rel. v. Suprs., 25 ld. 313; People ex rel. v. Suprs., 51 N. 1. 442: Spaulding v. Arnold, 125 id. 194. The judgment appealed from was erroneous, because the acts of 1869 and 1871 had and have no application to taxes paid upon the property of the New York and Oswego Midland railroad and its successor. The disposition of the taxes on that property was provided for in the act taxing it. Clark v. Sheldon, 106 Ν. Υ. 110: People v. U. Ins. Co., 15 Johns. 358; Jackson v. Collins, 3 Cow. 89; Dresser v. [172 Brooks, 3 Barb. 429; Holmes v. Carley, 31 Ν. Y. 289; Chase v. R. R. Co., 26 Id. 523: Harbeck v. Pupin, 55 Hun, 355; Delafield v. Brady, 108 N. Y. 524, 526; People v. R. Co., 84 Id. 565; In re R. W. Comrs., 66 id. 413; Chase v. Lord. 77 Id. 1; In re Breslin, 45 IIun, 210; Heckman v. A claim of a town against a county for State Pinckney, 84 N. Y. 211, 215; Anderson v. And (Af'g 62 Hun, 210.) Counties-taxes diverted by treasurer-rail road-aid bonds. Kilbourne v. Board of Supervisors of Sullivan County. erson, 112 Id. 104, 111; People v. Jahne, 104 218; P. R. Co. v. Allen, 16 Barb. 15; People v. 272; Guest v. City of Brooklyn, 79 id. 624; The recovery, if well founded, was far too T. F. Bush, for respondent: The act of 1869 is constitutional, is well Suprs., 50 Hun, 54, 119 N. Y. 212: Crownin- shield v. Suprs., 124 id. 583. The act of 1869, so far as it relates to the ter 296 of the Laws of 1874. The latter applied only to the county taxes. Bowen v. 83; Mungeon v. People, 55 Id. 613; In re Crus- The exception of "school and road taxes" in of the state taxes intended for school purposes. A recovery for the taxes of 1881 was not Ing v. Arnold, 125 N. T. 194; 2 R. S. 996, § 37. 890. The demand made of the board of supervis- Earl, J. By section 4 of chapter 907 of the bonds of the municipality issued to aid Prior to the year 1874, the property of the bonds in aid of its construction should be obli In The New York, Oswego, & Midland rail- with the money so paid to him, to purchase 92 N. Y. 570. That action was based solely 137 CT.OF APP.-5 311 Kilbourne v. Board of Supervisors of Sullivan County. upon the act of 1874, and as that act did not deal with the State taxes, it was held that the plaintiff could not for that reason recover them. Under that act the county taxes were appropriated to the municipality in which the taxes on the railroad were imposed, and they were required to be paid by the collector to the railroad commissioners of the municipality, who were to use the money to pay the principal pri and interest of its bonds. Under that act, as the money was to be paid to and belonged to the municipality, it was held that it could recover a money judgment for the amount thereof. In the recent case of Woods v. Supervisors of Madison County, we held that the acts of 1869 and of 1874 could stand together, and that the municipalities which had issued bonds in aid of the construction of the Midland railroad were entitled to the benefit of the county taxes under the act of 1874, and of the State taxes under the act of 1869. Under the act of 1869 the money collected by taxes upon the property of the railroad company is not to be paid over to the municipality, but is to be paid to the county treasurer, and by him used and invested for the purposes specified in the act. The prior action was an action at law. This is an action in equity. That action was based upon a distinct cause of action under the act of 1874, and it in no way legally involved the taxes in question in this action. It is therefore very clear that the recovery in that action is in no sense a bar to a recovery in this. This action was brought under the act of 1869 to recover the State taxes collected *176] from the New York, Oswego, & *Midland Railroad Company, and its successor, the New York, Ontario, & Western Railroad Company, in the town of Liberty, from the year 1874 to 1887, both inclusive; and in the complaint the plaintiff alleges the imposi tion of the taxes upon the railroad and their collection, and that they were paid to the treasurer of the county, and by him used for the benefit of the county. A judgment is prayed for the recovery of the money, with interest, and that the several sums, with interest thereon, be levied and collected from the taxable property of the county and paid to the treasurer thereof for the purpose of purchasing and canceling the outstanding bonds of the town, or for investment as a sinking fund, pursuant to the provisions of the statute. The action was put at issue and resuted in a judgment in favor of the plaintiff. Before the commencement of the action the plaintiff presented his claim to the board of supervisors and demanded that it should levy upon and collect from the taxable property of the county of Sullivan the several sums of money, with interest thereon, to be paid to the county treasurer for the benefit of the town, and to be used or invested by †136 Ν. Υ. 403. him in conformity with the provisions of the statute; which demand the board of supervisors refused to comply with. V. The learned counsel for the defendant now claims that the remedy of the plaintiff was not by an action, but that he should have either reviewed the action of the supervisors by certiorari, or should have compelled them to act in pursuance of the demand by mandamus. We do not think that the claim of the plaintiff was one which he was bound to present to the board of supervisors for audit andallowance, like other ordinary claims and charges against the county. While this has been styled an action for money had and received by the county to and for the use of the town, it is really an action based upon wrong, the misappropriation of the money by the county through its agent the treasurer. Instead of using and applying the money as required by the statute the county wrongfully appropriated it to the discharge of its obligations to the State. Rothschild v. Mack, 115 Ν. Y. 1; Strough *Board of Supervisors, 119 id. 212; [*177 People v. Wood, 121 id. 522. Where a claim against a county is one based upon a wrong committed by it or attributable to it, the claimant is not bound to submit it to the board of supervisors for audit and allowance. Brady v. Supervisors of New York County, 2 Sandf. 460, affirmed 10 N. Y. 260; Newman v. Supervisors of New York County, 45 N. Y. 676. The plaintiff had against the county an equitable cause of action, and he may also have had a legal cause of action against it, ex delicto, to recover damages for the misappropriation of the money. He may have had the right to choose either form of remedy. But in no aspect of the case was he bound to submit his claim to the board of supervisors for audit. The plaintiff therefore committed no error in seeking his remedy by action, rather than by one of the special proceedings mentioned. The State taxes collected from the railroad company were in part imposed to raise money for school purposes to be paid to the State treasurer, and distributed by him through the proper officers to the various school districts in the State. It is therefore claimed that the plaintiff was not entitled to recover for so much of the State taxes as were thus for school purposes. It is very manifest that these taxes paid into the State treasury for school purposes are not the school taxes excepted in the act of 1869. The act appropriates all the taxes as provided therein except "school and road" taxes. The school taxes thus excepted manifestly have reference to those taxes collected in the various districts and municipalities for local school purposes. All the taxes paid into the State treasury are for State purposes, and it in no way interferes with the school system of the State to intercept and appropriate a portion of these taxes as provided in the act; and it would work great embarrassment and injustice if the taxes imposed in Kilbourne v. Supervisors of Sullivan County-Barnum v. Supervisors of Sullivan County. the various school districts of the State were required to be so appropriated. It was held in the case of Strough v. Supervisors, supra, that the cause of action in a case like this arises when the misappropriation of the money is made by the county treasurer, and in this case it arose when the county treasurer appropriated the *178] *money to the payment of the county obligations to the State. This action was commenced on the 24th day of December, 1888, and the plaintiff recovered for the tax of 1881, which was paid to the county treasurer early in 1882. The defendant claims that that tax was misappropriated by the county treasurer more than six years before the commencement of this action, and hence that the plaintiff should not have recovered on account of it. But the answer to this claim is that the burden was upon the defendant to show that this money was misappropriated more than six years before the commencement of the action, and this the proof fails with certainty to show. Hence there was no error in holding that the right to recover on account of that tax was not barred by the Statute of Limitations. The plaintiff's recovery included the tax of 1887, and that tax, although paid to the county treasurer long before the commencement of this action, was not misappropriated until a few days after it was commenced, and the defendant objects that it was erroneous to include that tax in the recovery. It was included in the complaint and in the plaintiff's demand for relief. This is an equitable action, and the tax depends upon the same rights as the taxes for the other years. It was involved in the same controversy, misappropriated in the same way, and the defendant's obligation for the tax of that year was the same as for the taxes of all the other years. It was a part of the plaintiff's controversy with the defendant, and therefore, although it was not misappropriated until a few days after the commencement of the action, it was not erroneous in this equitable action to afford the plaintiff relief in reference to it. While in actions at law the whole cause of action must have arisen before the commencement of the action, and no relief can be given as to anything which occurred subsequently, such is not the rule in equitable actions. In such an action the court, having obtained jurisdic tion of the parties and subject of the action, will bring its relief down to the trial, and thus make an end of the litigation so far as it pertains to the matter in controversy be179] tween the parties. *That is a familiar rule in equity as illustrated in the numerous authorities cited by the counsel for the plaintiff. We think, therefore, there was no error in including the tax of that year in the recovery awarded the plaintiff. For these reasons, and those quite satis factorily set forth in opinions delivered in the court below, we think the judgment should be affirmed, with costs. All concur. Judgment affirmed. Laws 1869, chap. 907, and Laws 1871, chap, 283, were repealed by the general municipa law. Liability of county for property misapplied. It is generally held that counties are liable where they are benefited by misappropriated money or property, as in an action assumpsit for money had and received, or for conversion. In Strough v. Jefferson County Supers. 119 N. Y. 212, the county was held liable in an action as for money had and received for the amount of taxes assessed on a railroad corporation, and misapplied by the county treasurer to the payment of county and State taxes, instead of to the payment or redemption of bonds of the town; and where the county unlawfully appropriated moneys collected from a town to its own use, It was required to refund them to the town, in an action money had and received. Bridges v. Sullivan County Supers. 92 N. Y. 570. Under N. Y. Laws 1874, chap. 63, § 1, amended by Laws 1892, chap. 60, § 3, providing that excise moneys received for licenses issued to the residents of a village shall be paid over to its treasurer to be used for the expenses of the village, a county was held liable to a town for such funds collected by the county treasurer and misappropriated by him to other county purposes. Port Richmond v. Richmond County, 11 App. Div. 217. So, under N. Y. Laws 1869, chap. 907, § 4, amended by Laws 1871, chap. 283, providing that certain taxes assessed against a railroad in a town shall be paid to the treasurer in the county, and used by him to purchase bonds issued by the town in aid of the railroad, a county is liable to a town for moneys so collected by the treasurer and misappropriated by him for other county purposes. Crowninshield v. Cayuga County Supers. 124 Ν. Υ. 583; Vinton v. Cattaraugus County Supers. 89 Hun, 582. But the county was entitled to credit for any moneys paid for the benefit of the town. Vinton v. Cattaraugus County Supers. 89 Hun, 582. BARNUM v. BOARD OF SUPERVISORS OF SULLIVAN COUNTY. (Aff'g 62 Hun, 190.) Rairoad-aid bonds-issued to refund not new debt. Bonds issued to refund at a lower rate of interest other bonds issued in aid of a railroad by a town do not create a new debt, so as to prevent the operation of N. Y. Laws 1869, chap. 907, requiring taxes assessed upon railroads in a town to be applied in purchasing bonds issued in aid of railroads. A PPEAL from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made November 24, 1891, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. Action to recover taxes paid on the property of the Port Jervis & Monticello railroad in the town of Thompson, Sullivan county, New York, for the years 1871 to 1887, inclusive, and appropriated by the county treasurer to the payment of county indebtedness instead of being applied as required ! |