166 A.D. 567 | N.Y. App. Div. | 1914
The following is the opinion of the court below:
This action is brought to enforce a vendee’s lien for the sum of $5,000 paid by the plaintiff on account of the purchase price of a plot of land under a contract of sale made between it and the executor of Mary G. Pinkney, deceased. Subsequent to the making of the contract said executor died, and the defendant Charles E. Littlefield was appointed administrator with the will annexed. The defendant counterclaims for specific performance of the contract, which provides in part that the vendor agrees to sell and convey to the plaintiff “ all that certain block, piece, or parcel of land * * * bounded and described as follows: Northerly by the southerly side of 148th street; easterly by the southwesterly side of a street known as Exterior street, as shown on a certain map entitled Map of Exterior Street in the City of New York along the shore of the Harlem River from 89th Street on the East River to the North or Hudson River, laid down in conformity with the exterior lines as established by the Harbor Commissioners by virtue of an Act of the Legislature
The survey referred to bounds the northerly and southerly sides of the property by West One Hundred and Forty-seventh and One Hundred and Forty-eighth streets, and indicates an
First. The Title Guarantee and Trust Company had informed plaintiff “ that its policy will not insure that so much of One Hundred and Forty-seventh street and One Hundred and Forty-eighth street as are east of the bulkhead line as now established have been legally opened or are existing streets, and that no rights whatever therein will be insured,” because it appeared that said streets had not been legally opened east of the bulkhead line. The title company, however, approved the title and was ready to insure it in accordance with the provisions of the contract; that is to say, subject to the incumbrances therein stated. It is contended by plaintiff that there was an implied covenant by the seller that the property to be conveyed was bounded on the northerly, southerly and westerly sides by streets which had been legally opened, and cites in support of its position numerous authorities which recognize the well-established principle that as between grantors and grantees of land bounded on a street there is an implied covenant by the former that the street exists and shall remain open as a street for light, air and right of access to such abutting property. But these are cases where the grantor owns the land described as a street bounding the premises conveyed.
This rule is inapplicable where the grantor has no fee or rights in the highway or street. This distinction' is clearly expressed in Fulmer v. Bates (118 Tenn. 731; 10 L. R. A. [N. S.] 964.) There defendant conveyed to the complainant certain real estate in Memphis by the following description: “Lots Nos. 1 and 2 of part of lot 5, block 53 of the plan of South Memphis, fronting 37% feet, each, on the south side of Linden street, and running back south, between parallel lines, 154 feet, to a twenty-foot alley in the rear.” No alley in fact existed, nor did the defendant own the soil in the rear of said lots. The complaint was dismissed. Upon appeal the court, in upholding the judgment, said: “ There is a marked distinction between the case of a grantor who owns the street or alley which his deed describes as bounding the property conveyed, and one who does not. In the former case, although there may not be an express warranty on the subject, the grantor is estopped from denying the existence of the street or alley. In the latter case, the reference is only descriptive, and no warranty is implied. The conflict of authorities on this subject is more apparent than real, dependent upon into which of the two classes the cases fall.”
In Howe v. Alger (86 Mass. [1 Allen] 206, 210) the land was conveyed as bounding on certain streets, but the grantor had no interest in the adjacent land so described. The action was brought to recover damages upon the theory of a breach of an implied covenant as to the existence of the streets. In rendering judgment for the defendant the court says: “Without a further or more extended examination of the cases cited by the plaintiff, it is sufficient to say that in all the cases cited under this head the grantor was the owner of the adjacent land described in the boundary as a street or way, and that the decision of the cases in favor of the various grantees required nothing further than the application of the doctrine of estoppel to the grantors, and those claiming under them, to deny the existence of the street.”
In Holloway v. Delano, No. 2 (64 Hun, 34; affd., 139 N. Y. 390), where a similar question was under consideration, it is said: “ That an owner of land does acquire an interest in a street abut
It is, therefore, clear that no implied covenant that the land described as One Hundred and Forty-seventh and One Hundred and Forty-eighth streets formed existing streets may be predicated upon this contract.
Second. The next point urged by the plaintiff, that the contract is incomplete in that the location of the bulkhead line is not fixed therein, seems to me without merit. The contract to convey is expressly made subject to the use and control by the city and State of Hew York and of the United States of so much of the land as lies east of the bulkhead line, the location of which had then been established under authority of the Secretary of War upon the United States government map filed in the office of the War Department:
Third. The contention that the vendor was obliged to inform the purchaser of the location of the bulkhead line seems to me untenable. While Mr. Ross, the vice-president of the plaintiff, testified that he was ignorant of its location, it appears from Mr. Randall’s testimony that prior to the execution of the contract for the purchase of the property both Mr. Ross and Mr. Horton, the attorney for the plaintiff, examined the report of the title company, which stated that it would not “guarantee any right to fill in with solid filling any part of the premises described which lies east of the bulkhead line established by the War Department of the United States in 1890 or 1891,” and excepted “ all rights of the city of New York and State of (sic) and the United States government to regulate and control the use of so much of the premises as lies east of said bulk
Fourth. Plaintiff also contends that the filling outside of the bulkhead line constituted an incumbrance. The United States statutes provide that no deposits be made beyond the established bulkhead line “ except under such regulations as may be prescribed from time to time” by the Secretary of War. (25 U. S. Stat. at Large, 425, chap. 860, § 12; 26 id. 455, chap. 907, § 12; 30 id. 1151, chap. 425, § 11.) In respect of this point, it is sufficient to say that, independent of any other consideration, there is an absence of legal proof that this alleged filling was done without the authority of the Secretary of War. Plaintiff’s argument that in any event specific performance should be refused in the exercise of the court’s discretion, for the reason that the contract is unfair, is fully met by the fact that there is not a particle of evidence of such unfairness, nor is there any testimony that tends to show that plaintiff was misled into making the contract by act of the defendant.
It follows that the complaint must be dismissed upon the merits, and plaintiff compelled specifically to perform its contract. Findings passed upon.
See Laws of 1857, chap. 763.— [Rep.
