#### The People of the State of New York, Respondent, *v.*Raquette Falls Land Company, Appellant.

Third Department,

September 9, 1914.

Contract — agreement that defendant for a period of years may remove timber from lands claimed by State — motion to set aside settlement of action on grounds of fraud—extension of time within which defendant may remove timber — powers of court.

Where an action brought by the State to recover timber lands occupied by the defendant was discontinued upon the condition that the defendant deed the lands to the State, reserving, however, the right to remove *775certain timber thereon at any time within ten years from the date of the agreement, and nine years thereafter the State moves to set aside the settlement upon the ground that it was collusive and fraudulent, the court, on motion of the defendant, should not grant an order providing that the time occupied by the plaintiff’s motion and by appeals from an order entered thereon shall not be part of said ten years limited by the defendant’s conveyance for the removal of the timber. This, because while the court may compel parties to execute their agreement, it has no authority to make agreements for parties or to substitute one agreement for another.

Qucere, as to whether the court, if it should grant the plaintiff’s motion to set aside the settlement of the action, may require defendant to stipulate that the time between the making of the motion and the final determination of the action shall not be considered part of the ten-year period of limitation.

Appeal by the defendant, Paquette Falls Land Company, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Essex on the 1st day of May, 1914, denying a motion made by the defendant.

*Edward M. Angell,*for the appellant.

*Thomas Carmody, Attorney-General [John T. Norton*of counsel], for the respondent.

Lyon, J.:

This action was brought in January, 1905, to recover possession, and damages for the wrongful withholding, of three parcels of land of which the State claimed to be the owner, one of which was lot lio. 37, township 12, old military tract, containing 1,121 acres. The answer pleaded ownership and possession in the defendant. The following month the parties executed an agreement of settlement of the action by which the defendant was to be permitted to take judgment dismissing the complaint and adjudging the defendant to be the owner of the lands described in the complaint, and the defendant was to deed to the State the lands in question together with 1,280 acres of other lands, the defendant reserving to itself the soft wood timber down to eight inches in diameter, with the right to enter upon the lands and cut and remove the timber at any time within ten years from the date of the *776agreement. In accordance with the agreement the complaint was dismissed, and a conveyance of the lands was made by the appellant to the State, the deed containing such reservation of the soft wood timber. Such timber has now been practically removed from all the lands excepting lot 37, from which no timber has been taken. The ten years’ limitation, as stated in the deed, will expire February 23, 1915.

In- January, 1914, the State made a motion to vacate and set aside the agreement of settlement of the action, and all proceedings subsequent to the service of the answer, upon the ground that such settlement was collusive and fraudulent, and entered into for the purpose of divesting the State of its timber on lot 37. Thereupon the appellant made this motion, in which the order appealed from was granted, asking for an order providing that the time during which the proceeding instituted by plaintiff’s said motion shall be pending, to wit, from January 8, 1914, to and until a final order shall be entered and the time to appeal shall have expired, shall not be any part of the ten years limited by the said deed within which the grantees of the defendant may cut and remove from said lot the timber so reserved.

The appellant claims that equity requires its motion be granted for the reason that the respondent having waited nearly nine years after the time of making the agreement and of the entry of the judgment before making the motion, insufficient time of the ten years’ period will remain after the ultimate determination of the motion within which to cut and remove the timber, which the appellant values at from $25,000 to $50,000, and hence that even should the appellant be successful in the end, it and its grantees will he deprived of the right to take the timber as completely as though the decision of the motion had been adverse to the appellant. The respondent, however, claims that its action in moving to vacate the settlement and the judgment founded thereon has in no way restrained or affected the right of the appellant to cut and remove the timber; and that if at the time of the settlement the appellant had the right to cut and remove the timber, it still has that right.

It is true that the proceeding taken by the respondent has *777not enjoined the appellant from cutting the timber, but it has served as a notice by the respondent of its intention to question the right of the appellant to cut and remove the timber, which in the event of the final defeat of the appellant would subject it and its grantees to the penalty of ten dollars for each tree cut and also to criminal prosecution. The naked possibility of such prosecution is hardly less effective than would be the granting of an injunction restraining the appellant from cutting and removing the timber or the prevention of the act by physical force, in either of which cases the appellant if successful might obtain redress for the loss suffered by him. The appellant or its grantees although convinced to a practical certainty of their right to cut and remove the timber might well hesitate, in view of the penalties attached to the act if held to be unlawful, to assume the hazard attending such cutting and removal. Had the respondent made its application with reasonable promptness after the making of the agreement of settlement it is probable that sufficient of the ten years’ period would have remained after the final determination of the action within which the appellant might cut and remove the timber, and it hardly seems just that should it finally be determined that the appellant and its grantees have the right to cut and remove the timber, they should be deprived of it by reason of the delays of the respondent, practically as effectually as though the final determination had been against the appellant. However, the appellant seeks by this application to obtain an order modifying the express terms of the agreement of settlement, entered into voluntarily by the parties, and the deed executed in pursuance thereof, no claim of fraud or mistake being made. The effect of such an order, if valid, wrnuld be to extend the grant to such timber as the appellant should take off during the additional term. *(Decker*v. *Hunt,*111 App. Div. 821, 826.) While the court may compel parties to execute their agreement, it has no authority to make agreements for the parties or to substitute one agreement for another. *(Leavitt*v. *Palmer,*3 N. Y. 19; *Pitcher*v. *Hennessey,*48 id. 416; *Wemple*v. *Hauenstein,*19 App. Div. 552.)

We think the decision of the Special Term denying appellant’s motion was correct and should be affirmed. Should the *778court as a condition of granting the respondent’s motion, which is apparently still pending, see fit to require that the respondent stipulate that the time between making the motion and the final determination of the action shall be considered no part of the ten years’ period of hmitation, a very different question would be presented.

The order should be affirmed, with costs, but without prejudice to the appellant making further application for such order or relief as it may be advised.

Order unanimously affirmed, with costs, but without prejudice to the appellant making further application for such order or relief as it may be advised.