46 A.D. 609 | N.Y. App. Div. | 1900
The action was brought to recover for a breach of a covenant against incumbrances contained in a deed of a lot of land in the city -of New York, and the question presented is as to the time a certain
Upon the 30th day ,of November, 1896,, the defendant, a domestic corporation, being the owner of certain real éstate in the twenty-third ward of the city of New York sold the samé at public auction, and at such sale the plaintiff purchased from the defendant the •property described in the deed in. question. Such' property was sold under certain terms of sale which were executed by the plaintiff as purchaser. It was there provided: “ The property will be conveyed! by warranty deeds free and clear of all incumbrances (except the covenants against nuisances) and lots will be described by metes and bounds, bounded by the side of the streets upon which they' are located; All taxes and assessments which are liens upon the premises will be paid or allowed by the sellers, and the title insured free of cost to each purchaser.” In pursuance of such sale the plaintiff paid to the defendant on the day of sale ten per cent of the purchase money, and on the 5th of January, 1897, paid the balance of the purchase money, and received from the defendant a warranty-deed of the premises. This deed was dated December 10, 1896, was in consideration of $100 and other valuable' consideration, arid conveyed to the plaintiff a lot of land bounded by the easterly side of Bryant stz’eet and the northerly side of East-One Hundred and Seventy-second street, including a description which would exclude the fee of the streét. This deed contained a covenant that the said premises' were free from incumbrances, and that the defendant warranted the title to the said premises. It further appeared that on December 14,1894, proceedings had been commenced in the Supreme-Court to acquire title to East One Hundred and Seventy-second street from the Southern Boulevard to Bronx i-iver, and that on that day azi order was entered appointing commissioners of estimate and assessment; that ¡such proceedings -were duly conducted; and the commissioners’ report making an award for damage to the owners of property taken for the sti’eet and imposing an' assessment'for benefit, dated November 18, 1896, was presented to .the Supréme: Court for confirmation on December 10, 1896. It would appear that the application for the confirmation of that report was opposed
By section 990 of the Consolidation Act (Chap. 410, Laws of 1882), in force at the time of the delivery of this deed, it is provided that the application for the confirmation of the report shall be made to the Supreme Court at a term thereof held in the city of New York, “and such report, when so confirmed by the said court, shall be final and conclusive, as well upon the said mayor, aldermen and commonalty of the city of New York, as upon the owners, lessees, persons and parties interested in and entitled unto the lands, tenements, hereditaments and premises mentioned in the said report; and also upon all other persons whomsoever.” By section 995 it is provided that “ the respective sums or assessments so to be assessed and rejlorted by" the said commissioners of estimate and assessment, as and for the allowance to be made by the parties-and persons respectively in the said report mentioned or referred to, and intended as owners and proprietors of, or parties interested in, lands and premises deemed to be benefited, for the benefit and advantage of the public square or place, street, avenue, or part or section of a street or avenue, or of the extension, enlargement or other improvement of the street or public place mentioned In the said report, shall be a lien or charge on the lands, tenements, hereditaments and premises in the said * * * report, of the said commissioners mentioned.” Provision is also made by the Consolidation Act for the discontinuance of the proceedings at any time prior to the confirmation of the report of the commissioners by the court, and the court had power to send the report back to the commissioners to correct any error in an assessment or other proceeding joy the commissioners, and it is only upon the final confirmation of the, report by the court that the report is conclusive upon the owners of property affected by it, or that an assessment is imposed Upon the premises or becomes a lien; and incumbrance, thereon. This seems to be the uniform course of the decisions of the courts of this.State. In Dowdney v. Mayor (54 N. Y. 186) it is expressly held that an assessment is not a lien or incumbrance within the meaning of a "covenant
■ The judgment appealed from was right, and it is affirmed, with costs.
Yan Brunt, P. J., Rumsey and Patterson, JJ., concurred.
Judgment affirmed, with costs.