183 A.D. 225 | N.Y. App. Div. | 1918
Lead Opinion
The action is brought to compel the defendant to take title to a block fronting on Edgecombe and St. Nicholas avenues in the city of New York under a contract of sale dated August 21, 1916. By the contract the plaintiff agreed to convey the premises free and clear of all incumbrances with certain exceptions mentioned and not here in question. The defendant refused to take title upon the ground that the premises were incumbered by the restrictions placed upon the use thereof by reason of a resolution of the board of estimate and apportionment placing the area in which the said premises were located in a zone in which the use of the buildings was restricted. This resolution was passed on July 25, 1916, pursuant to sections 242a and 242b of chapter 466 of the Laws of 1901, as added by chapter 470 of the Laws of 1914, and as further amended by chapter 497 of the Laws of 1916. The statute gives to the board of estimate and apportionment power to designate certain areas to which these restrictions shall apply. It is not questioned that these restrictions were material and affect the value of the property in question, and that all the steps specified in this zoning act to make effectual the restrictions were duly complied with. It appears in the case, however, that the defendant had no actual knowledge that the premises in question had been placed by the board of estimate and apportionment in an area wherein the use of the premises was restricted and the sole question for our determination is whether the existence of these restrictions, unknown to the purchaser, constitutes such an incumbrance as will relieve the purchaser from its obligation to complete its purchase under the contract.
There seems to be no doubt if these restrictions had been placed upon the property by the acts of the former owner that they would constitute such an incumbrance as would
It is difficult to see if these restrictions constituted an incumbrance when placed upon the property by deed why they do not constitute an incumbrance when placed upon the property by an act of the Legislature.. It is unnecessary to pass upon the question as tó whether they constitute such an incumbrance as requires compensation to the owner in order legally to justify the same. If the restrictions are such as when placed upon the property by the prior owner, to constitute an incumbrance, it would seem to follow that it was the fair intention of the parties in a contract to convey free from incumbrance that the property was to be conveyed free from such restrictions.
To what extent rights of the parties may depend upon the fact that these restrictions were put upon the property pursuant to an act of the Legislature presents a different question. Authorities are not necessary to the proposition that in the making of contracts the law of the place enters into the contract and is deemed" a part thereof as though its terms were included, but these restrictions were not placed upon this property by any public statute, nor were they placed thereupon by an ordinance of the city. The statute authorized the board of estimate and apportionment, upon the report of a commission duly appointed, to select certain areas in the city of New York within which area the use of property should be subjected to certain restrictions. The property in the city generally was not subject to any named restrictions but only certain parts thereof as might be selected by the commission with the indorsement of the board of estimate and apportionment, and as to those parts thus selected, the restrictions were varied, some of the property being made subject to some restrictions and other property to other
Laughlin and Shearn, JJ., concurred; Clarke, P. J., and Dowling, J., dissented.
Dissenting Opinion
The building zone resolution was adopted by the board of estimate and apportionment on July 25, 1916. It took effect at once, and, from that day, it. and the maps which were a part of it were matters of public record in the board of estimate. The power to pass this resolution was given by chapter 470 of the Laws of 1914 (adding to Greater N. Y. Charter [Laws of 1901, chap. 466], §§ 242a, 242b), as amended by chapter 497 of the Laws of 1916.
In my opinion the building zone resolution is not an incumbrance within the meaning of the contract. The resolution was obviously intended as a mere police regulation of business and premises. It is a police regulation such as the Tenement House Law or Building Code and numerous other regulations which are never mentioned in contracts and have never been held to be incumbrances. I, therefore, dissent from the opinion of the majority and vote to affirm the judgment appealed from.
Dowling, J., concurred.
Judgment reversed, with costs, .and complaint dismissed, with costs, and judgment ordered for defendant as directed in opinion. Order to be settled on notice.