Breen v. Stone — 25 N.Y. St. Rep. 1012

Majority

p. 1012

James H. Breen, Resp’t, v. Thomas Stone, App’lt.

(City Court of Brooklyn, General Term,

Filed May 2, 1889.)

Headnote

Deed—Description—Construction—Boundaries.

Where a grantor conveyed a lot in the shape of a parallelogram, and,

p. 1013

according to the call and measurement of the deed, the westerly line, if drawn in accordance therewith, would cut off three inches of the house, Held, that the width of the parallelogram was at least that of the house, and not three inches less, and that the wall of the house formed the line of the lot.

William Sullivan, for resp’t; David Barnett, for app’lt.

A party owning a plot of land in this city, fifty feet on State street and 100 feet deep, builds on the westerly portion of the same a dwelling-house about seventeen feet and eleven inches wide and fifty feet deep. He then carves out of the whole plot a separate lot, with this dwelling-house upon it, and fences the front court-yard and the back yard, and conveys the same by the following description:

“All that certain lot, piece or parcel of land, with the buildings thereon erected, * * * and bounded and described as follows, to wit: Beginning at a point on the northerly side of State street, distant 157 feet four inches easterly from the northeasterly corner of Bond and State streets, running thence northerly parallel with Bond street 100 feet, thence running easterly and parallel with State street seventeen feet eight inches, thence southerly again parallel with Bond street and through the centre of a party-wall 100 feet to State street, thence westerly along State street seventeen feet eight inches to the point or place of beginning.”

To conform the westerly line of the lot to the westerly line of the wall the call of the deed for a starting point should have been 157 feet one inch easterly from Bond street, instead of 157 feet four inches.

Is the westerly wall the westerly line of the lot, or must the westerly line be drawn according to call and measurement of deed, which will cut off three inches from the house ? Does this deed convey a dwelling-house, and the lot upon which it stands, or a lot with only a part of the dwelling-house ? Does the line of the wall control the description or do the measurements, according to the call of the deed, control the description ?

It seems to us plain that the grantor conveyed a lot in the shape of a parallelogram, the two sides being parallel with Bond street, and each side 100 feet long, the front and rear line being parallel with State street,' and the width of this parallelogram was at least that of the house, and not two or three inches less. The house was the chief part of the purchase. The distances and dimensions of the calls in the deed must be increased or diminished to correspond with the location calls marked on the land, to wit, in the case at bar, a parallelogram-shaped lot in a city 100 feet deep and seventeen feet; eleven inches wide. Such a grant is supposed to be made with reference to actual view of the premises by the parties thereto. Jackson v. Barringer, 15 Johns., 471 ; Wendell v. Jackson, 8 Wend., 183 , 190;

p. 1014

Hathaway v. Power, 6 Hill, 453 ; Allerton v. Johnson, 3 Sandf. Ch., 72 ; Drew v. Swift, 46 N. Y., 207 ; White v. Williams, 48 id., 344 ; City of Boston v. Richardson, 13 Allen, 146 ; Rogers v. Smith, 4 Penn., 93 .

Judgment affirmed, with costs.

Clement, Ch. J., concurs.