129 N.Y.S. 682 | N.Y. App. Div. | 1911
The proceeding, begun in 1909, is for the condemnation of certain lands, for the purposes of the water supply of the city of New York, pursuant to chapter 724 of the Laws, of 1905, which included a certain tract of 8.6 acres , belonging to the Kensico Cemetery, a corporation organized in 1889 pursuant to an act passed April 27, 1847 (Chap. 133), entitled “An act authorizing the incorporation of rural cemetery associations ” and the acts amendatory. The Kensico Cemetery appeared in the proceeding, filed a claim for; damages and received an award. This appeal is. taken by holders of certain “land shares ” issued by the said Kensico Cemetery, from an order of the Special Term that denies their motion that the report of the commissioners of appraisal with respect to said tract be not confirmed, that the proceedings be reopened and sent back to the said commissioners to hear the proof and allegations of the said appellants in respect to their interest in the said tract, and to ascertain thereon the just and equitable compensation to the said appellants. These appellants, did not appear and were not represented before the commissioners of appraisal: The existence of these land shares was known to the. said commissioners, and the contention was made before them by the attorney for the cemetery corporation that, inasmuch as the title to the tract' was in that corporation, he “as far as it is possible ” represented the interest of the said shareholders. The learned counsel for the city took the position before the commission that, if the landowners were not before the commission, “they have three years from the filing of the oath [of the commissioners of appraisal] within which to present such evidence
The learned counsel for the city states in his printed points as follows: “If, as is contended, these appellants have not appeared, in the proceeding no decision of the Commissioners-of Appraisal as to their rights or interests or any award to third parties would be binding upon them or cut off them right to compensation, and inasmuch as the Court has set aside said award and reopened the proceedings on other grounds it would seem unnecessary to decide this appeal were it not for the fact that the Commission has decided the order herein is controlling and that appellants cannot be heard before them on the retrial of this parcel.”
The. practical question, then, is whether these appellants are entitled to be heard on the retrial of these proceedings.
In Whittemore v. Woodlawn Cemetery (71 App. Div. 257) this court in its First Department held that similar conveyances were with a condition subsequent that the land must be devoted to cemetery purposes, that the estate would be defeated on non-compliance and a re-entry would be authorized. In American Exchange National Bank v. Woodlawn Cemetery (120 App. Div. 128) the court say: “On dissolution of the corporation there can be no doubt that the holders would have had an interest in the proceeds of sale under judicial process. It has been held that they have an interest in the award made in condemnation proceedings, where part of the cemetery lands are lawfully taken for public purposes. (Whittemore v. Woodlawn Cemetery, 71 App. Div. 257.) ”
The act of 1905 itself contemplates that just and equitable compensation shall be made by the city to “ the owners or
Since the Revised Statutes the possibility of reverter is not held to be an estate in lands. (See Fowler Real Prop. Law [2d ed.], 313; Upington v. Corrigan, 151 N. Y. 143.) “There is not even a possibility coupled with an interest, but a bare possibility alone.” (Quoted in Upington v. Corrigan,.supra.) In W~hittemore,s Case (Supra) the court held that there was a breach of condition in that the purpose for which the land was to be devoted had failed, but that such breach was worked by an exercise of the sovereign power. While “a mere failure to perform a condition subsequent does not divest the estate” (Nicoll v. New York & Erie R. R. Co., 12 N. Y. 121, cited and approved in Upington v. Corrigan, supra), yet, in this case, “the grantor or his hens” in effect have chosen to take advantage of breach, so far as is possible under the circumstances, in that -they insist upon their right to compensation. In Whittemore’s Case (supra) the court say, speaking of the “beneficial interest in the fulfillment of the condition,” “Such beneficial interest exists in this case in Savor of the grantor and the certificate holders, and is of such a character as authorized them to insist upon the performance of the same.” And in that case the court held that
■ I ■ think the expressions of the statute are comprehensive enough to embrace the- application of these shareholders. In Mayor, etc., v. Stone (20 Wend. 139) the court, per. Nelson, Oh. J., construing, the expression “ owners of such building, and all’persons having an estate or interest therein,” say: “The term interest (the only word upon which a doubt can possibly be raised), in the connection in which it is found, Clearly imports some share in the building itselfj. and was intended, probably, if not to be regarded as. synonymous with estate, to include any degree of interest of claim' therein which might not, in technical language, fall within, any of the subdivisions of estates.. It' may well, however, be regarded as synonymous> as the- term estate, when used in reference' -to. land, signifies simply, an interest-therein; 2 Black. Oopn. 103; and both terms are in common use in the transfer of titles, as may be- seen in the various, forms of ’conveyance.' The word interest fis. also, frequently used by the Legislature in respect to real estate. 1 R. L. 503, § 1. Laws of 1816, p. 63., and others which might be referred to.” In Matter of Mayor, etc. (34 Hun, 441; 455; affd; 99 N. Y. 569) it was said: “No uncertainty can attend the report of the,, commissioners made by complying with the directions contained in the act concerning the owners of the property, or their interest in- it; so far. as-that may be ascertainéd.. They have been directed to make a just and equitable-estimate of the loss and'damage of the owners, lessees'- and persons interested,, etc.,, terms certainly broad enough to include every possiblé interest-to be compensated by means- of their estimates. (Watson v. N. Y. Central R. R. Co., 47 N. Y. 157, 161, 162.)” lam of opinion, then, that upon the rehearing already ordered, these appellants have á right to • submit' their claims and to offer- their evidence. I
I advise that the order be reversed, without costs, and the ' motion be granted, without costs.
Hirsohberg, Burr, Woodward and Bioh, JJ., concurred.
Order reversed, without costs, and motion granted, without costs.