152 N.Y.S. 41 | N.Y. Sup. Ct. | 1914
The conveyance to plaintiff of the premises described in the complaint was a gift from the grantor in memory of her then deceased husband, and the subject of the gift was to be known as the “Hans S. Christian Memorial.” So far as appears from the deed, the grant was not subject to any condition, and there is no forfeiture clause, nor any provision for re-entry for breach of condition. There is no reservation in the grantor of any part of or any right in the land conveyed, and nothing is excepted from the subject of the grant. It is the usual short form of warranty deed, with a covenant against grantor’s acts. Contemporaneously with and bearing the same date as said deed, an agreement between plaintiff and its grantor, Mrs. Christian, was entered into. That agreement had reference to the use of the premises so conveyed. The original of said agreement is lost, but the copy in evidence and the fact of its execution were established by secondary proof. Indeed, in the minutes of a meeting of the board of managers of the plaintiff society, held on March 27, 1897, a copy of said agreement is spread at length. The purpose of the gift was for charitable uses, and the deed and agreement must be read together and construed accordingly.
From a recital in said agreement it appears that the buildings upon said premises were, until the same be sold or otherwise disposed of, as therein provided, to be used as a deaconess home of the plaintiff society. Said agreement then provides that the donor of said gift might, at any time thereafter, but before such sale or other disposition of said premises, erect upon a portion of said premises a building
“Nothing herein contained shall permit the party of the first part to make any change in the use of said property or proceeds for or during the 25 years next ensuing the date hereof, except as hereinbefore provided.”
In 1897 the city of Brooklyn embraced all of Kings county within its municipal bounds, and by reason of the consolidation of the various municipal corporations in the Greater New York the city of Brooklyn became the borough of Brooklyn therein, covering the same territory within the former city of Brooklyn. The adoption of the kindergarten system and its use in the public school system of the city of Brooklyn. contemplated the territory, then included within the former city. The change from its entity and identity as a separate city to that of one of the boroughs of the greater city does not in any wise affect the rights-of the parties to the action. There is still the same public school sys
The main question is: Was the kindergarten system of teaching in December, 1910, “generally adopted and used” as a part of the public school system of the “borough”—formerly city—“of Brooklyn”? We here have the past tense of the active verbs “adopt” and “use” modified by the adverb of degree “generally.” Defendant’s counsel urges that the expression “generally adopted and used” imports a universal use ■in all the elementary schools in the territory indicated. To this claim the court cannot give assent. The expression “until generally adopted and used” contemplates a time when that system is commonly adopted and used; that is, in common use in the public schools of Brooklyn. Upon consolidation (1898), the board of education was given and still has power to establish kindergarten classes (Charter of 1897, § 1093; Charters of 1901 and 1906, § 1069), and the maintenance of such classes has been and is provided for (1897 Charter, §§ 1065 [subd. 2] 1112; 1901 and 1906 Charters, §§ 1056,1088). In December, 1897, there were in the then city of Brooklyn 120 elementary schools in the public school system, in 14 of which were provisions for kindergarten teaching, with an attendance of 574 children; while in December, 1910, there were 166 elementary schools in the borough of Brooklyn, in 124 of which was the kindergarten system taught, with an attendance of 12,473 children; and it was also shown on the trial that all school buildings erected in Brooklyn since 1910 have, by direction of the board, facilities for kindergarten instruction. It certainly cannot be claimed that kindergarten instruction in the high, manual training, commercial, and vocational schools is contemplated by the clause in question. That refers, necessarily, to the elementary schools in the borough, and we find that of those maintained in Brooklyn in 1910 nearly 75 per cent, afforded kindergarten instruction. Consequently it can, I take it, be said that such instruction was then commonly—that is, was generally—adopted and used (i. e., afforded), in the public school system of Brooklyn.
The contention of defendant’s counsel that the provision in the agreement in question forbidding the plaintiff “to make any change in the use of such property or proceeds for or during the twenty-five years next ensuing the date” thereof, except as thereinbefore provided, of itself measures the period of time during which the defendant may use said building for the purpose of kindergarten instruction is untenable. Other than as above stated, the agreement is not difficult of interpretation. It is as follows:
'(1) Plaintiff may sell and dispose of the whole premises if the “buildings and grounds,” or any part thereof, should become unsuitable for the purposes contemplated by the agreement, “or it should for any other reason seem * * * for its best interest to sell and dispose of said premises or any part thereof.” In that event plaintiff may sell, but must receive and reinvest the proceeds for the same purpose, or, if those purposes and uses are satisfied, then for such other charitable or benevolent purposes as may seem to plaintiff’s trustees most advisable and best calculated to carry out the donor’s purpose of perpetuating the memory of her husband.
*45 (2) Meanwhile, and until the system of kindergarten teaching shall be generally adopted and used in the public school system as before stated, the defendant is to have the use of the building so erected for a kindergarten school. When that system is so adopted and used, the tenure of defendant’s right of possession and occupancy of the building referred to ends and terminates, whether the plaintiff has sold and disposed of said premises or not.
(3) If, however, such kindergarten system is not so adopted and used as aforesaid, then the plaintiff shall permit the defendant’s use of said building, or its participation in the proceeds of such sale, if one is had, during the period of 25 years ensuing the date of such agreement. The premises have not been sold by plaintiff, but defendant’s tenure and right of possession has terminated, and was at an end prior to the commencement of this action.
The defendant’s motion for a direction of a verdict in its favor is denied, with an exception to defendant. Plaintiff’s motion for a direction of a verdict is granted, with 6 cents damages, and an exception to defendant shall be noted. The verdict so directed shall be that the plaintiff is now the owner of the fee of the premises, the possession of which is here sought, but in trust for the maintenance of the Deaconess Home of the plaintiff society, or for such other charitable or benevolent purposes as may seem to plaintiff’s trustees most advisable and best calculated to carry out the purpose of perpetuating the memory of Hans S’. Christian, and to be known as the “Hans S. Christian Memorial.”