
    George Freifeld and Ambrose S. Murray, as Trustees under the Last Will and Testament of Robert F. Bixby, Deceased, and George Freifeld, as Trustee under the Last Will and Testament of John M. Bixby, Deceased, Respondents, v. M. Groh’s Sons, Appellant.
    First Department,
    December 21, 1906.
    Contract by lessee to pay portion of taxes — facts insufficient to establish contract — when existence of contract question of. law — evidence — unauthorized payments by president of corporation do not show contract •— party.
    When the evidence is undisputed, the question of the existence of a contract is for the court. " •
    The plaintiffs sought to charge the defendant, a lessee, under an alleged contract by the latter to pay a portion of the taxes. Said agreement was alleged to have been made after the execution of the lease and because of the erection of a building by the lessee whereby the taxes were increased. The only proofs given of the alleged contract were an instrument apportioning the taxes on the premises hut containing no reference to the payment of said taxes, and letters in which'the plaintiffs’ predecessor in title, on paying the taxes, requested the defendant to favor him'with a check for .a portion thereof. This letter contained no reference to any agreement by the defendant. Other letters by the defendant were put in evidence showing that the defendant had made certain payments stated to be “ our proportion of. the taxes ” in excess of a certain valuation, but they referred to no agreement to- pay the taxes. There was also evidence that several payments of like nature had bqen -made.
    
      Held, that the evidence was insufficient to establish either a contract to ¡pay taxes or any consideration to support such contract;
    That the fact that the president of the defendant corporation may have misapplied corporate moneys in paying part of said taxes did not establish a valid agreement binding the corporation;
    That the plaintiffs • being trustees, but. not the personal representatives of the' deceased owner with whom the alleged contract was made, were not entitled to enforce such contract.
    ClaBke and Houghton, JJ., dissented.
    Appeal, by the defendant, M. Gr'oh’s Sons, from - a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of FTew York on the 2d day of April, 1906, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 27th day of March, 1906, denying the defendant’s motion for anew trial made upon the minutes., ■ •
    
      Thomas F. Keogh, for the appellant.
    
      Charles Gibson Bennett, for the respondents.
   Ingraham, J.

The action was brought to recover upon an alleged contract by which the defendant agreed to pay to one Robert F. Bixby,'individually and as trustee, a part or proportion of the taxes which should thereafter in each year be assessed on certain demised premises, which' had been leased by Robert F. Bixby individually and as trustee to the defendant. The complaint alleges that on' June 13, 1888, the said Robert F. Bixby, individually and as trustee, leased certain premises to the defendant’s assignor for a term of twenty years; that prior to May 1, 1897, the defendant claimed to have become the owner of the said lease and was in possession of the premises, and that on May 17, 1897, Robert F, Bixby, individually and as trustee,, leased the said premises to the'defendant for a term of ten years, from the 1st of May, 1908 ; that after the making of the lease, May 1, 1897, the defendant erected upon' the said a large and valuable building, whereby the taxable value or valuation of the said premises was greatly increased ; that for a good and valuable consideration, the defendant made and entered into a written agreement, dated on or about November 9,1898, wherein and whereby the defendant covenanted and agreed with the said Bobert F. .Bixby, individually and as trustee, the said landlord of the demised premises, to pay such part or of the taxes 'which should thereafter in each year be assessed on the said premises as the excess of the whole taxable valuation thereof over the sum of $12,000 should bear to their whole taxable valuation ; and the complaint further alleges that the taxable of the said demised premises for the year 1903 Was $33,000 and that the whole amount of the taxes duly assessed thereon was $466.51, and that the tax rate was about,.014 per cent and that the part or proportion of the said taxes for the year 1903 which the defendant ought to have paid under the said agreement ivas seven-elevenths of the said $466.5,1, to wit, the sum of $296.87. The only evidence by which it was sought to prove such a contract was an instrument dated November 9, 1898, and two letters written by the president of the defendant to Bobert F. Bixby."

The instrument of November. ninth is signed by Bixby and as trustee and by defendant. It is in form a that 238 and 240 West Twenty-eighth street be apportioned permanently at $12,000 for 238 West Twenty-eighth street and at $18,000 for 240 West Twenty-eighth street. It does not say what is to be apportioned unless it is the lots, and does not say what is to happen after the apportionment. If we assume this relates to all assessments for taxation there is nothing agreed to as to what is to happen after the apportionment. Certainly no agreement to pay any taxes can be implied and there is no consideration either expressed or proved of any agreement if there was one. The first letter is dated September 28, 1899, written by defendant to Bixby, and is as follows :,.

"DE~ Sir.- By written agreement of Nov. 9/98 you were to bear ta~x~s on lot No. 64 upon a v ati~o~, of ~1~OOO~ wh~b. ~t thi~ year’s rate $2.48' amounts to $297.60. Enclosed we send you oUr check payable to the Receiver of Taxes for $2,108.34,. the entire amount, having had the bill made out intact, and we shall trouble you to send it to the Tax Office with bill on Monday and when it is returned to us we shall have a duplicate made out and sent you.

“ In the meantime kindly fa.vor us with your check for $297.60.”

It will be noticed that the letter contained no reference of any agreement made by the defendant. -It recites an agreement made by Bixby in regard to taxes upon this property. There was nothing in this letter which would justify a finding that any contract had ever been made by which the defendant had agreed to pay taxes' upon the plaintiff’s property. The other letter was dated October 4, 1899, written by the defendant to Bixby, in which it was stated: “ Tours of yesterday with enclosure of our check to hand. We. herewith send you check for $74.46 being our proportion of taxes in excess of $12,000 valuation on 238 W. 28 St to wit, $3,000 at $2.48 which we trust you will find correct.” There is nothing in this letter to indicate that the defendant had ever made any agreement to pay taxes upon the plaintiff’s property. Another létter from Bixby to the defendant, dated October 21, 1898, was introduced, stating that there would be a considerable increase of taxes in consequence of the putting up of a new_ building, but the writer then imagined that there was no help for that. There was also proof that the defendant had paid for one or more years a portion of the taxes upon the demised property.

At the close of the plaintiff’s cáse the defendant moved to dismiss the complaint upon the ground that no contract had been proved. This motion-was denied, and the defendant excepted, the court submitted the question to the jury, who found a verdict for the plaintiffs.

■ The question whether there was a contract was one for the court and not for the .jury, as the evidence was undisputed; but I fail to find from this testimony the slightest evidence to justify a-finding that there was any contractor evidence-of a consideration for a contract. It appears that in May, 1897, the defendant was in possession of the premises under a lease, which expired on the 1st of May, 1908, when the plaintiffs’ predecessor in title leased the property to the defendant for a term of ten years, beginning on the 1st day of May, 1908. Under these leases, therefore, the defendant was entitled to the possession of the premises until 1918. It is not alleged or proved that the lease imposed any obligation on the defendant to pay any of the ta,xes upon the property. It is claimed that on November 9, 1898, after all these leases had been executed, the defendant, made a contract agreeing to pay a pprtion of the taxes on the demised .premises. There was, however, no evidence of such a contract and so far as appears the defendant received no consideration for making any contract. No letter of the defendant refers to any promise made by it. The argument of- counsel for the plaintiffs is that unless there was an agreement as a matter of fact, the defendant’s president for five years gave away the money of his corporation as if making a Christmas gift or a contribution to liis political party; but the fact that the president of the corporation misused the funds of the corporation is certainly no evidence to show that there was a valid agreement that lie should continue to misuse the money'of the defendant over which he had control, and it is a novel proposition that if it is proved that the president of a corporation has misapplied the money of the corporation there is to •be inferred that he has agreed by a valid contract, based upon a sufficient consideration, to continue such misappropriation.

I think there was no evidence of any contract,- nor was there any evidence of any consideration which would support a contract. It should be noticed that plaintiffs are not Bixby’s personal representatives, and cannot enforce any contract of Bixby’s if one was made, and nothing is alleged to show that plaintiffs, as devisees of Bixby or as successors to Bixby as trustee, were vested with the right to enforce Bixby’s contracts.

It follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

. Patterson, P. J., and McLaughlin, J., concurred; Claree and _ Houghton, JJ., dissented. _

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order filed.  