Killmore v. . Howlett

48 N.Y. 569

Opinion

Gray, C.

If the standing trees upon the lot, which by the contract were to have been cut by the defendant and made into cord-wood, and delivered by him to the plaintiff at Syracuse, had, instead of the wood to be made therefrom, been sold in their standing condition, “ rooted in the soil,” the right of the plaintiff to enter and fell them, and make them into wood, would have been a sale of an interest in the land, and without being evidenced by writing would have been void. (Green v. Armstrong, 1 Denio, 550, 553 et seq.) This was not a sale of the trees in their standing condition, but rather a contract by the defendant to bestow work and labor upon his own material, and deliver it in its improved condition to the plaintiff. In a similar case, Littledale, J'., in Smith v. Surnam (9 B. & C., 561, 566) held it not to be the intention to give the vendee any property in the trees until they were severed from the freehold. Apply the rule contended for by the defendant, and a writing would be indispensable to the validity of a contract by the owner of a peat bed or a sandbank to deliver a load from it. Such contracts are never regarded as carrying an interest in the real estate from which the thing sold was to be taken by the owner. The judgment should be affirmed.

All concm*.

Judgment affirmed.