App. Div.] Third Department, November, 1907. Carroll was to remain in the possession of said premises and execute a bond and mortgage to the said Eliza Warren for the amount he agreed to pay therefor on receiving from her the deed provided by said agreement; in furtherance of said last-mentioned contract the said Carroll entered into and remained in possession of such premises until he died intestate in August, 1888, and since that time his heirs at law, of whom the appellant is one, have remained in such possession; in May, 1881, said Eliza Warren became the purchaser of said premises under the judgment of foreclosure entered in the action to foreclose said mortgage as aforesaid, but did not receive a deed of said premises, although entitled thereto; in 1886 said Eliza Warren died leaving a last will and testament, wherein she devised and bequeathed all of her estate to said Susan W. Bryan, and appointed William W. Bryan and said Susan W. Bryan executors thereof, which will was admitted to probate and the executors therein qualified as such; in 1888 letters testamentary under the will of said William L. F. Warren, deceased, were issued to John A. Bryan, the remaining executor named in said will after the death of said Eliza Warren; in 1888 said Elizabeth B. W. Westcott, by an instrument under seal, assigned and transferred to said Susan W. Bryan all her right, title and interest in and to said contract between said Eliza Warren and Patrick J. Carroll; and at the same time said John A. Bryan, as executor of the will of William L. F. Warren, deceased, and said Susan W. Bryan and William W. Bryan, as executors of the will of Eliza Warren, deceased, by an instrument under seal, ratified and confirmed the said assignment of the said Elizabeth B. W. Westcott to said Susan W. Bryan, and also assigned and conveyed to said Susan W. Bryan all interests which the said estates separately and respectively had in and to such contract; in 1890 said Susan W. Bryan received the deed of said premises under the judgment in the said foreclosure action; in 1899 said Susan W. Bryan died leaving a last will and testament, wherein the plaintiff, said William W. Bryan, was named as executor and empowered with the sale of real estate, which will has been duly admitted to probate and letters testamentary issued to said William W. Bryan. It is further alleged in the complaint that while in possession of said premises under said contract of January 24, 1881, and from that time down. to October 4, 1886, said Patrick J. Carroll made payments on Third Department, November, 1907. [Vol. 122. account of the said contract, and became entitled to credits for the value of services, so that at the latter date there was due from him on account of said contract $419.58, no part of which has been paid, and that since said last-mentioned date of October 4, 1886, he and those claiming under him have occupied the said premises without compensation, and that said Eliza Warren, prior to her death, and said Susan W. Bryan, after she received the deed of said premises as aforesaid, and the plaintiff since her death, have offered to fulfill said contract, and that the plaintiff is now able and willing to perform the same, but that the said Patrick J. Carroll, and since his death his heirs, have refused to perform the same or to relinquish possession of the premises, although in occupation thereof. James F. Swanick, for the appellant. Charles C. Lester, for the respondent. COCHRANE, J.: No personal claim is made against the defendants, but plaintiff is seeking to recover out of the property an amount which the demurrer admits to be unpaid on said contract of January 24, 1881. That the foregoing facts vest the plaintiff with a good cause of action for the relief sought admits of no doubt. Although Mrs. Warren did not receive the deed under the foreclosure sale she became entitled thereto and was the equitable owner of the property by virtue of such sale. The delivery of the deed to her was a mere formality, and so far as the facts appear she could at any moment have possessed herself of the same. The rights of the parties as they then existed were that Carroll, by virtue of such contract of January 24, 1881, became the equitable owner of the property and entitled to a deed thereof from Mrs. Warren, and all that the latter had were such rights as she acquired under said contract. The failure of the parties to consummate such contract was not her fault. According to the complaint she was able to perform her contract with Carroll and offered to do so. Carroll recognized the contract by remaining in possession thereunder and making payments on account thereof. His successors cannot very well claim that there was a failure to perform on the part of Mrs. Carroll. When she App. Div.] Third Department, November, 1907. died, therefore, the equitable status of the parties was that Carroll was entitled to a deed of the property, and Mrs. Warren had only such rights as were accorded to her by said contract. Whether such rights belonged to her individually or as the representative of the estate of William L. F. Warren, deceased, in either event they were duly assigned to Susan W. Bryan, plaintiff's testatrix, by the representatives of the estates both of William L. F. Warren and Eliza Warren respectively, and thereby plaintiff's right to enforce such contract becomes unquestioned. We need not indulge in any refinement of reasoning as to who, strictly speaking, should have received the deed of the property after Mrs. Warren's death. Under her contract with Carroll she in her lifetime became entitled thereto only for the purpose of transferring the title to him. The deed under the foreclosure judgment might have been executed directly to him in consummation of such contract on his complying with the terms thereof. It was in fact executed to Susan W. Bryan who had succeeded to the rights of Mrs. Warren in said contract, and who recognized Carroll's right to the property and held the title for his benefit and offered to convey it to him. No other person had any right to the deed save in confirmation of his title. If no deed had been executed it would not change the situation under the circumstances here appearing, but the court would establish the rights of the parties according to their contract. The fact that Mrs. Bryan received the deed, even if irregular, is inconsequential in view of the fact that both she in her lifetime and her successor since her death held the title for the benefit of Carroll and his successors. The allegation in the complaint that the residuary legatees under the will of William L. F. Warren, deceased, became entitled, on the death of Mrs. Warren, to a deed of the said premises, is not a statement of fact but a conclusion of the pleader, which, if erroneous, may be disregarded. It is suggested that Mrs. Warren was not authorized to make the contract in behalf of her decedent's estate, or to dispose of the property. As incidental to her authority to foreclose the mortgage she also had power to dispose of the property which came to the estate, and which was a part thereof by virtue of such foreclosure and which stood in the place of the mortgage. Third Department, November, 1907. [Vol. 122. It is further urged that as the contract was to be effective only in case Mrs. Warren should complete the foreclosure of the mortgage and become the purchaser of the property at the foreclosure sale, she did not absolutely bind herself to convey the property to Carroll, and that hence the contract lacked mutuality. When Mrs. Warren became the equitable owner and capable of conveying the property, and Carroll was in possession thereof under the contract and made payments thereon, she became obligated to fulfill the contract, and from that time forward, irrespective of the prior status of the parties, the contract has been mutually enforcible. The appellant may not retain possession of the property without responding to the corresponding obligations resting upon him. The only relief plaintiff seeks herein is of an equitable nature. With a perfect claim of right under the contract he is endeavoring to enforce, and with the appellant in possession of the property without a shadow of right thereto save under such contract, a plain case is presented to a court of equity for such relief as is sought. The interlocutory judgment should be affirmed, with costs, and with leave to the appellant, on payment of such costs and of the costs in the court below, to withdraw the demurrer and serve an answer. All concurred. Interlocutory judgment affirmed, with costs, with leave to appellant, on payment of such costs and the costs in the court below, to withdraw demurrer and serve an answer. WILLIAM FITZGERALD, Appellant, v. THE STATE OF NEW YORK, Respondent. Third Department, November 13, 1907. State canals- injury to private owners by raising feeder level. Although the State of New York is entitled to maintain the water of a lake at a certain level for the purpose of feeding State canals, it cannot by raising the crest of its dam or by negligently operating its gates flood the lands of private owners to their damage, and a claim for such injury should not be dismissed by the Court of Claims. App. Div.] Third Department, November, 1907. APPEAL by the claimant, William Fitzgerald, from a judgment of the Court of Claims of the State of New York, rendered on the 18th day of June, 1906, dismissing the appellant's claim. Martin F. Dillon, for the appellant. William S. Jackson, Attorney-General, and Timothy I. Dillon, Deputy Attorney-General, for the respondent. COCHRANE, J.: Claimant is the owner of real estate on the westerly shore of Skaneateles lake. Said lake is used as a feeder for one of the canals of the State and a dam at the mouth of the lake has for many years been operated by the State for the purpose of regulating the flow of water into the canal. In his claim as filed claimant alleges that the officers or employees of the State caused gates in said dam to be shut so that the water rose above high water mark as established by the State to such an extent that a stone wall erected by claimant along the easterly side of his premises upon the shore of said lake was washed out and destroyed. Until recent years the crest of the dam was level with a point known as "high-water mark." It is conceded that the State had the right and it exercised the right to raise the water to that point. Within a few years, the exact time does not appear, the dam was raised two feet with the result that unless the gates therein were properly operated the water would rise above said high-water mark. The only justification for such change in the dam is claimed to exist in chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, which authorized the city of Syracuse to take water from said lake and for that purpose to increase the storage capacity of the lake and to otherwise make the necessary constructions. But there is no evidence that said change was made by or for the benefit of said city nor does it appear from this record that said city ever availed itself of the rights or privileges thus conferred or that the said dam or lake ever experienced any change by reason of such legislation. The dam and gates were under the control and management of the State. As appears from the evidence on the part of the State the water was permitted by its gatetender at different times to rise |