256 A.D. 253 | N.Y. App. Div. | 1939
The conveyance of 1878 from plaintiffs’ ancestors to The Brooklyn, Flatbush and Coney Island Railway Company, predecessor of defendant New York Rapid Transit Corporation (hereinafter called the Transit Corporation), was by its terms a permanent easement (Hudson & Manhattan R. R. Co. v. Wendel, 193 N. Y. 166; Crouch v. State of New York, 218 App. Div. 356) and was subject to a condition subsequent (Allen v. Trustees of Great Neck Free Church, 240 App. Div. 206) by which it was “ to revert to the said parties of the first part, their heirs and assigns whenever the same shall cease to be used as a railroad and for railroad purposes.” Defendant Transit Corporation for a time used the entire premises for railroad purposes and from about 1908 continued to operate its railroad up to the time of the commencement of the action on about ninety-seven per cent of the property transferred in 1878. In 1908 defendant Transit Corporation leased the premises in controversy, being about three per cent of the entire plot, for purposes other than railroad purposes, for a term of three years, with a right of cancellation on sixty days’ notice. From 1911 to about 1920 defendant Transit Corporation leased this small parcel from time to time for other than its purposes, the exact terms not being disclosed. In 1920 there was a lease for a term of three years, but this was canceled by another lease for a period of ten years at a rental running from $850 a year to $1,600 for the last three years. The lessees were permitted to demolish and remove the frame building maintained on the leased premises and to erect, at a cost of $8,500, and maintain two one-story stores thereon in accordance with plans furnished
The foregoing facts, contrary to the holding of the Trial Term, do not constitute an abandonment so as to work a reverter of the premises under consideration within the terms of the deed. (O’Brien v. New York, New Haven & H. R. R. Co., 189 App. Div. 703; Bitter v. Thompson, 102 Ark. 442; 144 S. W. 910; Kip v. New York Central Railroad Co., 140 Misc. 62; affd., 236 App. Div. 654; affd., 260 N. Y. 692;. Matter of City of New York [East 136th St.], 127 App. Div. 672; Roby v. N. Y. C. & H. R. r. R. Co., 142 N. Y. 176; Proprietors of Locks & Canals v. Nashua & Lowell Railroad Co., 104 Mass. 1; 2 Reeves on Real Property, § 718.)
The judgment should be reversed on the law, with costs, and the complaint dismissed, with costs.
Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ., concur.
Findings of fact and conclusions of law inconsistent herewith are reversed and a new conclusion of law accordingly will be made. Settle order on notice.