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Reed v. Metropolitan Elevated Railway Co.

45 N.Y. St. Rep. 330 Court N.Y. Gen. Term Decision date 1892-03-31 English

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p. 330
Francis C. Reed, Substituted Trustee, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App'lts.
(Supreme Court, General Term, First Department,
Filed March 31, 1892.)

Headnote

Bailroad—Elevated—Trustee and life tenants.
Where the plaintiff is a trustee who has only a limited power of sale, to-be exercised with the assent and concurrence of the life tenants, the judgment should require that the life tenants should join in the conveyance, to-be given on payment of the fee damage.
Appeal from judgment entered on report of referee.
A. 0. Townsend, for app’lts ; A. L. Smidt, for resp’t.

It appears from the trust deed through which the plaintiff derives his title to the premises in question that only a limited power of sale is conferred upon him, viz: that such power of sale shall be only exercised with the assent and concurrence of certain life tenants named in such trust deed. Therefore in order that a complete title to the easements mentioned in the complaint, it is necessary not only that the trustee should convey, but that the said life tenants should signify their assent and concurrence. in such conveyance, which might be done by joining therein.

The judgment should provide, therefore, that the compensation, for fee damage should only be paid upon the tender of a conveyance executed by the trustee accompanied by the consent and concurrence of such life tenants.

All of the other questions involved have béen passed upon in other actions determined by -this court, and it is not necessary to-discuss the same.

We think, therefore, that the judgment should be modified by requiring that, as a condition of the demand of payment of the amount found as the value of the easement 'forming the subject-matter of this action, the plaintiff should not only tender his deed, but also the assent and concurrence of the said life tenants to such conveyance, and as so modified the judgment should be affirmed, without costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.