
    Alfred Colville, Resp't, v. William J. Miles, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    Landlord and tenant—Lease of farm—Who entitled to hat on TENANT ABANDONING FARM.
    Plaintiff, who was the owner of a certain farm, leased it with a large number of cattle thereon to one Kane, under an agreement that Kane should have all the milk from the cows (about forty). Kane was to cany the stock on the farm, raise enough on the place and buy deficiency if any. The hay and grain could not be sold, but “it belonged to the cattle.” Kane fled alter about six months and the plaintiff at once took possession of his farm, but certain creditors of Kane had attached the hay, oats and straw, as the property of Kane for his debts. Held, that the hay, etc., belonged to the plaintiff; that Kane had no leviable interest in it, but only a naked right of possession while he remained in possession, for the sole purpose of carrying out the contract McCombs v. Becker, 3 Hun, 343, distinguished.
    
      Appeal from a judgment in favor of plaintiff entered upon the verdict of a jury at the Orange county circuit, and from an order denying a motion for a new trial on the judge’s minutes.
    
      M. N. Kane, for app’lt; D. F. & H. Gedney, for resp’t.
   Barnard, P. J.

The plaintiff was the owner of a farm in Orange county with a large number of cattle thereon. In the spring of 1885 he leased the farm to one Kane, under an agreement that Kane should have all the milk from the cows (about forty head). Kane was to carry the stock on the farm, raise enough on the place and buy deficiency, if any. The hay and grain could not be sold, but “ it belonged to the cattle.” Kane fled in the fall of 1885, and left the cattle in a neglected condition. The plaintiff at once took possession of his farm, but certain creditors of Kane had attached the hay, oats and straw as the property of Kane, and for his debts. The sole question is one of law, whether on this contract Kane had ever a title to the produce of the farm, which was reserved by the landlord for the express feeding of the cattle on the farm.

There is no reported case which has in it the facts of this case. In McCombs v. Becker (3 Hun, 342), the agreement was that the tenant should pay for deficiency of hay in carrying through the landlord’s cattle, and the landlord was to have excess. It was held in this case that the title to the hay was in the tenant.

The fair intendment from the facts was that the usual' incidents to an absolute tenancy prevailed, and that the tenant owned the title.

In the present case the reserve is two-fold. The fodder raised from the farm for the cows shall not be sold or removed from the farm, but that it must be fed to them. It belonged to them. By this limitation the title to the product did not go to the tenant, but was reserved to the lessor, and at most Kane had a naked right of, possession for the sole purpose of carrying out his contract, and when he abandoned that, he had no leviable interest in it. Heald v. Builders Ins. Co., 11 Hun, 38.

The judgment should be affirmed with costs.

Dykman and Pratt, JJ., concur.  