
    Henry N. Hawkins, Resp’t, v. James Giles, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 1887.)
    
    Xbase—Title to crops under.
    This defendant leased to another party a farm and cattle, the lease containing a provision among others that the lessee should feed out all the fodder on the farm that was raised on said farm, and should-winter the cattle on hay, through to grass in the spring of the year in which the lease terminated. Held, that the title to hay raised on the farm was in the tenant instead of the landlord, and was subject to sale upon an execution held by the lessee against the plaintiff.
    Appeal from a judgment in favor of plaintiff, entered in ■Oneida county, upon the verdict of a jury, and from an •order denying a motion for a new trial, made upon the minutes of the justice before whom this action was tried.
    
      Oswald P. Backus, for app’lt; J. I. Sayles, for resp’t.
   Follett, J.

Appeal from a judgment entered upon a verdict for $133.88 damages, in an action for the conversion •of hay. The record does not show that a motion for a new trial was denied on the minutes, though the notice of appeal assumes the existence of such an order. James Giles, defendant, leased to Lewis Converse a farm and seven •cows from April 1, 1883, to April 1, 1884, and agreed to furnish sufficient hay to keep the cows to grass in 1883. ■Converse agreed to pay $175 rent, * * * and to feed -out all the fodder on said farm that is raised on said farm, ■* * * and winter said stock (seven cows) through to .grass in the spring of 1884 on hay.”

In December, 1883, the plaintiff had an execution against ■Converse, under which about twenty-five tons of the hay .grown upon the.farm in 1883 was sold, the plaintiff becoming the purchaser. The defendant prevented the plaintiff from removing the hay, and this action was brought to recover its value. The defendant insisted that under the •clause above quoted from the lease he was entitled to hold the hay as against the plaintiff, because: (1). Converse left without fully paying the rent. (2). The hay was required to keep the cows through to grass in.1884. (3). He was entitled to the manure which would be made by the hay being fed on the farm. The evidence does not show that the plaintiff before he purchased had notice of the provisions of the lease; it only appears that the defendant forbade the ;sale.

The learned trial judge held that the plaintiff was entitled to recover the value of the hay, and directed the jury to assess the damages, to which defendant excepted. The defendant also asked the court to rule that he had title to the .hay under the lease, and also asked to go to the jury upon the construction of the contract. Johnson v. Crofoot, 53 Barb., 574; S. C., 37 How., 59; Steffin v. Steffin, 4 N Y. Civ. Pro. R., 179; S. C., 17 N. Y. Week. Dig., 418; McCombs v. Becker, 3 Hun, 342; S. S., 5 T. & C., 550, are decisive that the title to the hay was in the tenant instead of in the landlord, and that it was subject to sale upon the plaintiff’s execution.

The judgment must be affirmed, with costs.

Hardest, P. J., and Boaedman, J., concur.  