Builders Mortgage Co. v. Berkowitz

118 N.Y.S. 804 | N.Y. App. Div. | 1909

Gaynor, J.:

The two lots sold are part of a tract which was conveyed by Morris Bergrin to Benjamin Ullman, by the latter to Kaehel Bergrin and by her to the defendant Davis Berkowitz, - mortgagor. Afterwards these three successive grantees united in a new conveyanee of the said tract to the said last grantee, it being stated therein, “ this deed is being given to correct previous errors made in former d eed made between all of the parties herein”. The description in such correction deed begins at the Southwest corner of Howard avenue and St. Johns Place, runs thence South along the West side of Howard avenue 82 feet 6-| inches to the Northerly side of Eastern Parkway Extension, thence Westerly along said North side of said Eastern Parkway Extension 88 feet, thence Northerly “andparallel with Howard avenue ” 130 feet 10 inches to the Southerly side of St. Johns Place, thence Easterly along the said Southerly side of St. Johns Place 90 feet 5 inches to the starting corner. The only variations in this description from the ‘ description in the said previous chain are that the length of the second course is changed to 88 feet from 88 feet and inch,’and in the third course the words “parallel with Howard avenue” are introduced. No other corrections are made of the said prior deeds. A correction deed prevails over the deeds corrected in respect of the boundaries and the land conveyed (Devlin on Deeds, vol. 2 [2d ed.] sec. 850c).

If the third course be taken as parallel to Howard avenue, the length of the last course is about 2)- feet shorter than that given, while that of the third is a trifle shorter, an inch or so; about 130 feet 9 inches, instead of 130 feet 10 inches. In that way a strip of the rear of the lots described in the mortgage and judgment, and sold at the foreclosure sale, i. e., about 2% feet on St. Jolms Place and running down to about one half of that at the other end, is cut off. In order to avoid this, the words parallel with Howard avenue must be disregarded, in which case the third course will lean off to the West, and come to St. Johns Place 90 feet and 5 inches from the corner of that street and Howard avenue, which is the distanúe by the description, instead of coming to it at a point about 88 feet from that corner, as is the case if the said third course has to be taken as parallel with Howard avenue.

On a motion like this the court does not make a decision that the title tendered is perfect or imperfect, all of the possible parties in interest not being before it. It only decides whether it be marketable, i. e., whether it be open to reasonable doubt, for that suffices to reject it (Wanser v. DeNyse, 188 N. Y. 378). The rule that courses and distances give way to monuments is of no use to us, for there is no monument to help us out. But it does not seem that it can be said with any certainty that the third course was made to read parallel with Howard avenue in the correction deed by mistake, instead of to establish a uniform Tear line for all of the lots fronting on Howard avenue; a line in the block parallel with the street lines, as is usual. There is nothing in the case to rebut the reasonable supposition that this was the object of the correction deed. Unless this was its object, there is no apparent reason why it was ever made. It seems reasonably certain that it was not made to drop -g- an inch in the length of the second course.

The order should be reversed.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.