1 N.Y.S. 237 | N.Y. Sup. Ct. | 1888
Proceedings having been duly instituted by the mayor,, etc., to acquire title to the land lying in One Hundred and Sixtieth street between the Eleventh avenue and Kingsbridge road, the commissioners, who were duly appointed, filed an abstract of their estimate and assessment, and duly advertised for objections to the same. As appears by this abstract, only a nominal award was made for the land, and no award was made for the buildings situate on' the land on One Hundred and Sixtieth street between the Tenth avenue and the Kingsbridge road. Objections were duly made and filed by William P. Buckley, who claimed to own the buildings in One Hundred and Sixtieth street between Tenth avenue and the Kingsbridge road. The commissioners, in their final report, refused to make any award either for the land or the buildings, claiming that there had been a dedication of the land in the street, and the buildings erected thereupon. Upon presentation of their report, this question was decided in favor of the objector, and an order was made referring the matter back to the commissioners for revision and correction, and from the order thus made the city appeals.
The only question is whether there was, upon the facts proved, a dedication of the land lying in One Hundred and Sixtieth street to public use. It is
There is another view to be taken of this case, which is fatal to the appellant’s position, and which has not been considered in any of the eases to which •our attention has been called, except in one case, which will be hereafter mentioned. Every instrument is to be construed according to the intent of the ■parties. If the parties to a deed clearly did not intend that there should be a .dedication .of any part .of the land embraced in a deed to a public use, there seems to be no principle of law upon which such a dedication can be claimed. In the ease at bar there is an evident intent to convey every right which the .grantor has .to the grantee, and an evident intent upon the part of the grantee to retain all that the grantor has to convey, and no intent manifest from the instrument that .a gift for public use is to be made; but, on the contrary, it is apparent that it w.as intended that no such gift or dedication shall arise. It is difficult, therefore, to see upon what principle a dedication can be claimed, ■simply because the parties are uncertain in regard to what rights they may .actually possess to the land covered by the proposed street, which never has been opened, and the land on which has never been condemned. It may be ..claimed that this view is in direct conflict with the previous decision of this
Bartlett, J., concurred. Macomber, J., concurred in the result.