183 A.D. 564 | N.Y. App. Div. | 1918
The appellant and others made like applications on the 25th day of May, 1915, which were denied and we affirmed the orders. (Matter of Newton Avenue (Harris), 173 App. Div. 15.) In the former petitions petitioners alleged that the title to the lands then owned by them bounding on the Albany Post road on the east was in Mary Samler on the 2d day of November, 1895, when a map of the territory was duly filed showing streets to be continued and streets discontinued. The principal contention made on the former appeal was that the easements of the abutting owners were not extinguished by the filing of the map and that they continued until the 1st day of August, 1914, prior to which time the petitioners had acquired title to the lots by descriptions bounding them on the east by said Albany Post road. The Special Term and this court held that all easements were extinguished on the 2d day of November, 1895, by the filing of the map, but we also held, overruling the contention made by the city, that the Statute of Limitations had not run against the claims for awards, and a similar decision made by this court at the same time in Matter of Newton Avenue (Van Cortlandt) (173 App. Div. 32) was affirmed by the Court of Appeals (219 N. Y. 399). On the former appeal it appeared by the petitions that Mary Samler, the owner of the easements at the time we decided they were extinguished, remained the owner of all of the lots until 1904, when she died intestate, and the petitioners claimed through her heirs. Assuming those to be the facts, we held that the claim for damages for the extinguishment of the easements passed to her personal representatives and that only the title to the.land abutting on the former highway, divested of any easements therein, passed to or could be conveyed by her heirs, through whom the petitioners claimed, and that, therefore,
It now appears by the present petition that Mary Samler never owned the premises and that at the time the easements were extinguished they were owned by the heirs of William Samler, who have intervened herein and appeared and opposed the motion and have obtained an order to intervene and prove the value of the easements the same as is now sought by appellant, and they are the sole respondents herein, as the city is indifferent as between the respective claimants. The respondents, as such heirs of William Samler, on the 10th day of September, 1909, conveyed the premises, now owned by the petitioner, and other premises abutting on the former highway, by full-covenant warranty deeds bounding on said highway to one Hennessy, who took title for the Stuard Realty Company, which caused a map thereof to be prepared subdividing the premises into lots, some of which, including those now owned by the appellant, were shown as abutting on said former highway, and sold the same at public auction on the 5th day of October, 1909, pursuant to an advertisement which stated that the lots abutted on said highway. Hennessy and wife conveyed to the Stuard Realty Company by like description and covenants on the 19th of October, 1909, and that company conveyed to appellant by like description and with like covenants on the 3d of November, 1909. It now further appears by the petition that the petitioner was not aware of the filing of the map closing the highway and extinguishing the easements at the time he purchased; that the Albany Post
In our former opinion wé stated the general rule, which is amply sustained by the authorities we cited, that a claim for compensation, which became substituted for the extinguished easement, would not pass by such a conveyance without an express assignment even though owned by the grantor. The appellant now, on the facts more fully presented, claims that the consideration paid by Hennessy on the purchase of the premises was based upon the theory that the Albany Post road was an existing public street and that by the conveyance to him it was intended to convey the easements therein, and that he intended to convey them to his grantee, and that the purchase price paid to it by the appellant was not only for the land actually conveyed, but also for the easements in the Albany Post road, which it was then supposed continued, and that, therefore, the petitioner is equitably entitled to the award to be made for such easements anc he relies upon authorities tending to support his claim that where it was intended to convey title or easements the vendee may become equitably entitled to the award made therefor when it appears that the title or easements was extinguished before the conveyance. (Drucker v. Manhattan Railway Co., 213 N. Y. 543; Magee v. City of Brooklyn, 144 id. 265; Holloway v. Southmayd, 139 id. 390; Mott v. Eno, 181 id. 346; Matter of St. Nicholas Terrace, 143 id. 621; Ranscht v. Wright, 9 App. Div. 108; Schonleben v. Swain, 130 id. 521; Geiszler v. De Graaf, 166 N. Y. 339; Clarke v. Priest, 21 App. Div. 177; Simms v. City of Brooklyn, 87 Hun, 35; Gates v. De La Mare, 142 N. Y. 307. See, also, Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 255.) The right to the award as
The order, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs payable by the respondents.
Clarke, P. J., Smith, Page and Shearn, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.