In re City of New York

256 A.D. 982 | N.Y. App. Div. | 1939

Proceeding for the acquisition of title to real property required for the opening and extending of 43rd avenue (Grout avenue-Perey street). Decree, in so far as an appeal is taken therefrom in respect of Damage Parcel No. 12, modified by inserting therein a provision that when the city pays the award to the mortgagee Harbro Holding Co., Inc., it shall have an equitable lien therefor upon the mortgaged premises not taken, by way of subrogation to the rights of the mortgagee, to extent indicated; and, as so modified, affirmed, without costs. The city was entitled to such subrogation under Matter of City of New York (Braddock Ave.) (278 N. Y. 163, 174). The rights of the parties are determined as of the day the city vested title in the land taken, to wit, November 2,1927. On that day the then mortgagee Law became entitled to the subsequently fixed $1,500 damage award. When the mortgage held by Law was assigned to the Harbro Holding Co., Inc., on February 28, 1928, that corporation became entitled to the award by way of application to the payment of the mortgage. When the mortgagee Harbro Holding Co., Inc., took title to the fee on April 11, 1929, by deed from the then fee owner Woodris Realty Corporation, it accepted that fee subject to the outstanding right of the city, of which it had imputed or actual knowledge, to an equitable lien upon that fee by way of enforcing the condition which attached sua sponte to the payment of the award of $1,500 to the' mortgagee. The doctrine of merger of a lesser estate or interest with a greater estate will not be permitted to work an injustice. A merger does not occur “ unless * * * justice and equity require it.” (Asche v. Asche, 113 N. Y. 232, 236; Rae Company v. Courtney, 250 id. 271, 274.) This view enforces the principle implicit in the doctrine that “ when land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon and incident to it.” (Utter v. Richmond, 112 N. Y. 610, 613; Matter of City of New York [Houghton Ave.], 266 id. 26; Matter of City of N. Y. [Neptune Ave.], 271 id. 331.) Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.