In re the Board of Street Opening & Improvement — 52 N.Y. St. Rep. 567

Majority

p. 567

In the Matter of the Board of Street Opening & Improvement of City of New York.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

Condemnation proceedings—Award—Grantee op land—Construction OP DEED.

A deed conveyed two lots “ excepting therefrom, however, so much of said lots as has been taken for the opening of One Hundred and Twenty-seventh street and the widening of Manhattan street.” Prior to the time of the date of the deed One Hundred and Twenty-seventh street had been laid out, but no proceedings were taken to condemn the land or to actually appropriate it until after such date. Held, that the portion of the lots over which the street had been laid out passed by the deed, and the grantee was entitled to damages for the opening of such street.

Appeal by James Baird from an order of the special term confirming the report of a referee appointed to ascertain the right to certain awards made to the respondents in proceedings for the opening of One Hundred and Twenty-seventh street

Foley & Powell, for app’lt; James A. Peering, for resp’ts.

The question presented ehere is as to the ownership of an award made in this proceeding to open One Hundred and Twenty-seventh street in the city of New York, from the Boulevard to Manhattan street. Thomas Lang was the owner in fee of certain real estate in the city of. New York, including two lots of land, designated on a map of Manhattanville made by Adolphus Loss as lots Hos. 104 and 106. All his estate, both real and personal, he devised to his children by will, which was duly admitted to probate. The children of said Thomas Lang having agreed to make partition of all the real estate of which he died seised, and to convey to each their respective shares, and having agreed that the two lots in question should be conveyed to one of the children, named John Lang, the other children executed a deed, dated the 30th of June, 1875, conveying to him the two lots in question by the following description :

“ All those two certain lots or parcels of ground situate, lying, and being at Manhattanville, and known and distinguished on a map of Manhattanville aforesaid made by Adolphus Loss, city surveyor, September 15, 1806, by the numbers 104 (one hundred and four) and 106 (one hundred and six) on the southwesterly side of Manhattan street, bounded northeast, in front, by Manhattan street, southeast by lot Ho. 108 (one hundred and eight), southwest, in the rear, by Blackberry alley, and northwest by lot Ho. 102 (one hundred and two), being the same premises conveyed to Thomas Lang by Joseph Husson by deed dated February 1, 1850, and recorded on the same day in the office of the register of the city and county of New York in liber 533 of Conveyances, page 457, excepting therefrom, however, so much of said lots as has been taken for the opening of One Hundred and Twenty-seventh street and the widening of Manhattan street.”

John Lang and Annie, his wife, by deed dated the 25th day of January, 1877, conve3red the said two lots by the same description to James Baird, the appellant herein. At the time of these con

p. 568

veyances a portion of the lots, as shown upon the Loss map, had been taken for the widening of Manhattan street; -and, prior to the time of those deeds, One Hundred and Twenty-seventh street, between Manhattan street and the Boulevard, was laid out by the commissioners of streets and roads on a map filed by them on the 1st of April, 1811, under and pursuant to chapter 115 of the Laws of 1807, but no proceedings had been taken to condemn the land included in One Hundred and Twenty-seventh street, or to actually appropriate it for street puiposes. Subsequently this proceeding was commenced to condemn the land included in One Hundred and Twenty-seventh street, which embraced a portion of these two lots in question, and an award was made to the owners of such portion of these two lots as was included in One Hundred and Twenty-seventh street, and the order appealed from gave to the heirs-at-law of Thomas Lang, the testator, the award thus made.

The question to be determined is, whether, by the deed from the heirs-at-law of Thomas Lang to John Lang, the portion of the two lots in question included within the bounds of One Hundred and Twenty-seventh street was excluded from that conveyance. The court below held that it was excluded from the conveyance, and remained vested in the heirs-at-law of Thomas Lang. We think, however, that it was not the intention of the parties to that deed that any portion of the two lots Nos. 104 and 106 on the Loss map, to which they still had title, should be excepted from' the conveyance; that all that was intended to be excepted was those portions of the lots to which ’they had lost title by reason of the proceedings of the city in actually taking them for street purposes. The language used clearly implies that the exception was to relate only to so much of the lots as had been, before the execution of the conveyance, actually taken for the opening of these streets, and not to any portion of the property which might in the future be taken for the opening of the streets in question. There was nothing to show that the grantors had any intention to reserve these small pieces of land that in the future would be necessary to be taken for One Hundred and Twenty-seventh street. So far as appears, they owned no property in the vicinity to which these pieces of land could be useful, and, in the face of the clear language used, we fail to see how any other intention could be implied. The order appealed from should, therefore, be reversed, and the amount of the award directed to be paid to the appellant, with costs and disbursements in the court below, and ten dollars costs on this appeal, and disbursements.

Yan Brunt, P. J., and Ingraham, J., concur.