Schoenewald v. Rosenstein — 25 N.Y. St. Rep. 964

Majority

p. 964

Justus Schoenewald, Plt’ff, v. Hattie Rosenstein,, Def’t.

(City Court of Brooklyn, General Term,

Filed June 24, 1889.)

Headnote

Deed — Mistaken description—When rejected—Mortgage foreclosure.

In an action to compel the purchase of certain real property, it appeared1 that hy accepting the sheriff’s deed under foreclosure proceedings, and under which plaintiff held, his title was defective, hut that hy rejectiñg an,

p. 965

erroneous portion of the description the deed plainly located the property. Reld, that the court should reject the mistaken portion of the description, in order to give effect to the intention of the parties, and that the foreclosure proceedings should not be disturbed, and defendant be compelled to take title.

TV. W. Butcher, for pi’if; Moses J. Harris, for def’t.

This is a case agreed upon in a controversy submitted without action, whereby the plaintiff seeks to compel the defendant to carry out a contract for the purchase of certain real property in Brooklyn owned by the plaintiff. The property is described and bounded as follows: “All that lot of land in the city of Brooklyn, etc., and the house thereon, beginning, at a point on the northwesterly side of Dodworth street distant ninety-five feet eight and one-quarter inches northeasterly from the northeasterly corner of Broadway and Dodworth street; running thence northeasterly along Dodworth street twenty-five feet; running thence northwesterly and parallel with Broadway ninety feet, and running thence southwesterly and parallel with Dodworth street twenty-five feet, and running thence southeasterly and parallel with Broadway, ninety feet to the point or place of beginning.”

In the abstract of title, it appears that a former owner of the property made a mortgage, which was foreclosed and a deed of the premises was executed by the sheriff, and it further appears that in the mortgage, the foreclosure proceedings and sheriff’s deed, the descriptions are in the same-words as above set forth, except that in place of “Beginning at a point on the northwesterly side of Dodworth street,” the words used are “beginning at a point on the northeasterly line of Dodworth street.” The title of plaintiff is defective, unless the deed of the sheriff conveyed the property in question. The sides or lines of Dodworth street are northwesterly and southeasterly, and when the expression was used “northeasterly line of Dodworth street,” the same had no meaning, and unless the property can be located from the remainder of the description, no title would pass. If we strike out the erroneous part, we have a description locating the property as plainly as if the side of the street had been properly set forth. The description would then read “ beginning at a point on Dodworth street, distant ninety-five feet eight and one-quarter inches northeasterly from the northeasterly corner of Broadway and. Dodworth street, running thence northeasterly along Dodworth street twenty-five feet, running thence northwesterly and parallel with Broadway ninety feet, and running thence southwesterly and parallel with Dodworth street twenty-five feet, and running thence southeasterly and parallel with Broadway ninety feet to the point or place of beginning.” If the principles laid down in Brookman v. Kurzman ( 94 N. Y., 272 ) are applied to the facts of this case, we have no hesitancy in holding that the title is good. The premises are clearly located on Dodworth street at a

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point distant ninety-five feet, eight and one-quarter inches northeasterly from the northeasterly corner of Dodworth street and Broadway, and running thence northeasterly along Dodworth street twenty-five feet. 'The point of beginning is fixed on Dodworth street, and ninety-five feet, eight and one-quarter inches northeasterly from the northeasterly corner of Broadway and Dodworth street. Judge Ruger, in Brookman v. Kurzman (supra) says: “Thelong established rules with reference to the construction of descriptions contained in ■ conveyances require courts to adopt such an interpretation- thereof as shall give effect to the instrument according to the intention of the parties, if that is discoverable from legitimate' sources of information.” * * * “In giving effect to such intention, it is also their duty to reject false or mistaken particulars, provided there is enough of the description remaining to enable the land intended to be conveyed to be located.” The learned judge cites many authorities to sustain the two propositions laid down in the foregoing quotation. See, also Masten v. Olcott, 101 N. Y., 152 ; Case v. Dexter, 106 id., 548; 11 N. Y. State Rep., 162.

We think that the same rules would apply to the description in the lis pendens and foreclosure proceedings as to that in the sheriff’s deed, and that the foreclosure cannot be disturbed, and was valid.

The court answers the first question submitted in the negative and the second question in the affirmative, and, pursuant to the stipulation, judgment is ordered in favor •of the plaintiff and against the defendant, that the defendant be compelled to accept the title, without costs.

Van Wyck and Osborne, JJ., concur.