Opinion of the Court, per VANN, J. [Vol. 152. in the whole tract. (Freeman on Cotenancy and Partition, § 509; 17 Am. & Eng. Enc. of Law, 758.) But when the property is so situated that actual partition is out of the question, even courts of equity, in this state, do not require contribution for improvements, as distinguished from repairs, except in the case of mills, houses and the like, under circumstances of special necessity. The erection of a new and independent building, the improvement of farming lands by fencing or drainage, the opening of mines or quarries, or the making of changes that are in no sense designed to protect or preserve the property, but simply to improve it and increase its value, do not warrant the court in requiring a cotenant who has not consented to contribute to the expense. This is just, as an extension of the rule from repairs to general improvements, in the nature of new erections, might enable one cotenant to "improve" the other out of his share in the property. The case of Green v. Putnam (1 Barb. 500) is sometimes cited as an authority sanctioning an allowance for the erection of a new building without consent. In that case, however, the plaintiff had been consulted and had consented to the construction of a sinaller building, but objected when it was ascertained that a larger one was in process of erection. The allowance made was "limited to the sum necessary for erecting the smaller building, and no relief was granted for the amount expended without the plaintiff's consent." The leading cases in this state are Scott v. Guernsey (48 N. Y. 106) which is relied upon by the respondents, and Ford v. Knapp (102 N. Y. 135) which is relied upon by the appellant. In the former case two remaindermen, without the consent of the others, but with the consent of the life tenant, erected buildings upon the premises, under an agreement with the life tenant that they might put up the buildings and receive the rents. One building erected in 1833 increased the value of the land by $750, and another erected in 1841, by $200. In 1854, when the life tenant died, the rents received had largely exceeded the value of the buildings and the interest on the investment. held that the remaindermen who thus improved the property N. Y. Rep.] Opinion of the Court, per VANN, J. were not entitled to any compensation therefor, and, upon partition, could not exact reimbursement from, or claim a lien upon, the shares of their cotenants. The court said: "There was no consent, mistake, or other equitable ground in this case for relieving the party who made his investment with full knowledge of the facts, voluntarily, and without any inducement offered by other cotenants. Had the appellants offered to share their rents, upon being paid a due proportion of the value of the improvements after the termination of the life estate, it might have afforded a better ground to claim compensation. The appellants are not within the reason of any of the adjudged cases, where relief has been granted in partition for money expended in improvements by one of several tenants in common." In Ford v. Knapp "the defendants were tenants in common with one Whittaker of a mill property badly run down, and out of repair." Whittaker's interest was sold upon execution to the defendants, "but subsequent judgment creditors redeemed and acquired the title of the debtor." "During the fifteen months between the sale and redemption, the defendants expended a large amount upon " a gristmill on the premises. Some of the machinery, adapted to and once used for merchant milling, was out of date and not worth repairing, while that necessary for custom work was still in use, but "dilapidated and inefficient." The dam was repaired, a new water wheel made and the machinery so changed as to do good custom work, which was classed by the referee who decided the case as repairs, "while the addition to the buildings and the introduction of new machinery and appliances for a merchant mill he classed as improvements. These repairs and improvements largely increased the market value of the property. Before they were made, a generous estimate of that value did not exceed $8,000, while on the sale in partition it brought about double that amount." The Supreme Court refused "any allowance either for repairs or improvements." This court, referring to Scott v. Guernsey, said: "Here were reasons enough for denying any equity to the improving Opinion of the Court, per VANN, J. [Vol. 152. tenant, and the case stands solidly upon its facts and is not open to criticism. But it does not deny the duty of a court of equity in a proper case to give its relief upon condition of an allowance for improvements, and does not undertake to specify all the cases in which such equity shall be recognized. Nor shall we undertake any such dangerous or impossible. effort. The authorities leave us at liberty to consider whether, upon the facts and circumstances of this particular case, the improving tenant ought to be protected, and furnish us the power to grant the protection if it may justly be demanded." After alluding to some of the facts of the case then in hand, the court continued: "The defendants acted in the presence of a peculiar and unusual emergency; they acted in entire good faith; the repairs were necessary and not merely a venture or speculation, and the improvements were in the line of restoration and not of new and strange enterprise. What they did was natural and normal to the use and character of the property and such as joint owners of equal ability might be expected to join in making. They offer to share in the increased income thus secured, and in every respect appear to have acted fairly." The court sent the case back for a division of the proceeds of the sale according to the principles stated in the opinion, and for an accounting of the income and profits which the defendants offered to make. We do not regard the two cases thus reviewed as in conflict. In the one special equities existed, while in the other they did not, and judgment went accordingly. In the earlier case those who made the improvement did it as a business venture, and they had received back from it not only principal and interest, but also a large profit, which they did not offer to share with their cotenants. In the later case those who made the improvements did not make them as a business venture, but to save the property and prevent the "business and custom" of the mill from drifting "into other hands." What they did was "in the line of restoration," not of independent construction, and when they had done it and had doubled the value of the property, they offered to share the increased N. Y. Rep.] Opinion of the Court, per VANN, J. profits with their cotenants. The improvements were made upon a mill and mill dam, which, owing to their peculiar nature, seem always to have appealed strongly to courts of equity for aid through contribution toward repairs and reasonable improvements, so as to keep pace with the times, accommodate the public and prevent loss of custom. In the case before us we find no such equitable strength in the claim of the appellant. He sustained the double relation to his cotenants of tenant by lease and tenant in common. Under the former relation he was entitled to no repairs, but was bound by a covenant in the lease to make such as would keep the premises in their normal condition, except depreciation by use and damages by the elements. The improvements were made mainly for the purpose of extending his business and increasing his sales, in which his cotenants had no interest. He had the right, by express contract, to remove all his structures during the term of his lease. The nature of the property did not permit decay, and there was no controlling necessity for making the changes and additions. If they had not been made the premises would not have depreciated in value. Some of the work was done after this action was commenced and a part even after the trial was in progress. It does not appear that the appellant offered any share of the profits to his cotenants, or to what extent the value of the premises was increased, or, unless inferentially, that they would sell for any more on account of the improvements. His erections were in the nature of new and independent construction to enable him to quarry more rock and sell it, and thus, pro tanto, he consumed the property. They were not "in the line of restoration," but of a business venture. We know of no well-considered case in this state that would authorize an allowance for improvements under these circumstances. It would be a dangerous extension of the rule governing the subject, which is always applied with caution, to permit one cotenant to run the other in debt, against his will, for unnecessary improvements. Equity requires contribution Statement of case. 152 114 155 591 152 114 78 AD 336 [Vol. 152. from tenants in common only to prevent injustice, and, unless The judgment should be affirmed, with costs. Judgment affirmed. HYMON BLOOM, Suing in His Own Behalf, et al., Appellants, 1. APPEAL — JUDGMENT OF REVERSAL BY GENERAL TERM. A judgment of reversal by the General Term holding that a finding of negligence by a referee or court, without a jury, is not justified by the evidence, will not be interfered with by the Court of Appeals, when it can fairly be said that the finding was against the weight of evidence, or that the proof so clearly preponderates in favor of a contrary result that it can be said with reasonable certainty that the conclusions of the trial court were erroneous. The 2. CORPORATIONS NEGLIGENCE OF DIRECTORS — DAMAGES, damages which can be recovered from directors of a corporation in an action against them by shareholders for negligence in its management cannot include disbursements from its treasury, to defray the expenses of its new business not yet established. 3. DIRECTORS - RELATION OF TRUST. Relations of trust and fidelity exist between a corporation and its directors, but not between the latter and the stockholders. 4 DIRECTORS-EXTENT OF LIABILITY. The liability of directors of a corporation on the ground of negligence extends only to the damages sustained by the corporation as the natural and proximate result of their acts or omissions, and they cannot be held liable in an action by stockholders for that which represents no element of damage to the corporation, and which could not have been recovered by the corporation had the action been brought in that form. An antici 5. DAMAGES-ANTICIPATED LIABILITY OF STOCKHOLDERS. pated statutory liability as members of a corporation, that has not matured in any judgment, and may never mature, cannot be included in the damages recoverable from directors of a corporation for negligence. Bloom v. Nat. United Benefit S. Co., 81 Hun, 120, affirmed. (Argued February 11, 1897; decided March 2, 1897.) |