[Copyrighted Material Omitted]
APPEAL by the defendant, The Brooklyn Cooperage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of November, 1910, upon the decision of the court rendered after a trial at the Albany Special Term.
Herrick & Herrick [D-Cady Herrick and James M. Beck of counsel], for the appellant.
Thomas Carmody, Attorney-General, and George P. Decker [John G. Agar and James F. Tracey of counsel], for the respondent.
Mynderse Van Cleef [Edward W. Hatch of counsel], for the defendant Cornell University.
SMITH, P. J.:
The defendant, the Brooklyn Cooperage Company, appeals from a judgment at Special Term, which has determined that the People of the State were the equitable owners of certain
Adirondack land, and has enjoined both defendants from cutting wood or timber upon said land or removing any wood or timber therefrom, and has required Cornell University to convey said land to the State. The land in question was conveyed by the Santa Clara Lumber Company to Cornell University pursuant to chapter 122 of the Laws of 1898. To comprehend fully the issues involved in this action it is necessary to understand the exact purport of that act. In the 1st section it is provided that upon the acceptance by Cornell University of the provisions of the act, the trustees of that university were authorized and empowered to create and establish a department in said university to be known as and called the New York State College of Forestry, for the purpose of education and instruction in the principles and practices of scientific forestry. By the 2d section the university was authorized to purchase not more than 30,000 acres of land in the Adirondack forests. The section then reads: 'The University shall have the title, possession, management and control of such land and by its board of trustees through the aforesaid College of Forestry shall conduct upon said land such experiments in forestry as it may deem most advantageous to the interests of the State and the advancement of the science of forestry, and may plant, raise, cut and sell timber at such times, of such species and quantities and in such manner as it may deem best, with a view to obtaining and imparting knowledge concerning the scientific management and use of forests, their regulation and administration, the production, harvesting and reproduction of wood crops and earning a revenue therefrom, and to that end may constitute and appoint a faculty of such school, consisting of one director or professor, and two instructors, and may employ such forest manager, rangers and superintendents, and incur such other expenses in connection therewith as may be necessary for the proper management and conduct of said college and the care of said lands and for the purposes of this act, within the amount hereinafter appropriated.' By section 4 of the act it was provided that the deed to be given should contain an express covenant running with the land and binding upon said university, that the same was conveyed for the uses and purposes in the act provided for, and
also an express covenant on the part of said university to convey said lands to the People of the State as thereinafter provided for. Section 5 provided that said lands should be paid for by the State. By section 6 it was provided as follows: 'All moneys received by Cornell University from State appropriations for the said college shall be kept by said University in a separate fund from the moneys of the University, and shall be used exclusively for said college. * * *.' By section 7 it was provided that all sums received by the university from the sale of timber or otherwise under the act should be immediately paid to the State Treasurer, and credited to the fund appropriated from time to time for the purposes of the act. This section was amended by chapter 301 of the Laws of 1900 and some fiscal changes were made. By section 9 of the act of 1898 it was provided that at the expiration of thirty years the university should transfer the said lands to the State, and thereupon said lands should become part of the forest preserve. By section 10 of the act the sum of $10,000 was appropriated for the purposes of the act, exclusive of the purchase of land, to be paid to Cornell University.
The purpose of this act is clearly expressed and unmistakable. The land was to be purchased by the State. The expenses were to be met by the State by appropriation and by the proceeds of the sales of timber from said land. Cornell University acted merely as the instrument for the accomplishment of this State purpose. It was authorized to act as the agent of the State. Upon demurrer to the complaint the Court of Appeals has held (in 187 N.Y. 142) that Cornell University was acting under a restricted agency. Within the restrictions, however, imposed by the statute this agent was given full discretion as to the expenditure by contract or otherwise of moneys appropriated, and as to the sale of timber from the land, both as to terms and ...