167 A.D. 392 | N.Y. App. Div. | 1915
Lead Opinion
The essential facts are stated by my brother McLaughlin, and it is unnecessary to recapitulate them. They are undisputed, and the only question we have to consider is as to the legal effect flowing from them. The first of these is as to the reservation contained in the deed from plaintiff to Erdmann. In considering that we are at liberty to consider not only the language of the reservation itself, but the situation of the parties at the time it was made, and their subsequent actions.
Plaintiff’s situation when it made the deed was that it had a present right of action against the elevated railway company for damages for the continuing trespass up to the day of the date of the deed. This was the only claim it had for damages within the legal acceptation of that term. It had also a cause of action in equity for an injunction which might have resulted in a money payment, not for damages, but as compensation for the easements which had been impaired or appropriated by the railway company. What it reserved was “ all claims for damages,” and there was no suggestion of an intention to reserve anything else. The deed was a formal document, couched in legal phraseology, and I see no reason why the terms used in it - should be construed in but their legal sense. The reservation will, I think, be fully satisfied if construed to apply only to that which it expresses in terms, to wit, the claim for damages to which the grantor was thus entitled. To extend the words to cover a sum which might
What has already been said calls for a reversal of the judgment and I, therefore, do not discuss the remaining question whether or not plaintiff, if it ever had any claim under the easement, had not parted with it.
The judgment appealed from must be reversed and the complaint dismissed, with costs to appellants in this court and the court below.
Ingraham, R. J., Laughlin and Clarke, JJ., concurred; McLaughlin, J., dissented.
Dissenting Opinion
Prior to May 13, 1887, the plaintiff, a domestic religious corporation, owned premises known as 59-63 Allen street, in the city of New York. At that time and continuously thereafter the Metropolitan Elevated Railway Company and the Manhattan Railway Company, or one of them, operated an elevated railway in front thereof. On March 24, 1887, plaintiff contracted to sell the property in question to one Erdmann. The contract, among other things, provided “ that all claims for damages against the railroad companies owning or operating the elevated railroad in Allen street in front of said premises are to be reserved to the party of the first part [the plaintiff] in the deed.” In pursuance of the contract the property was conveyed to Erdmann by a deed executed May 13, 1887. The deed contained the following reservation: “ Reserving, however, to the party of the first part [the plaintiff] all claims for damages against the Railroad Companies owning or operating the elevated railroad in Allen Street in front of the premises hereby conveyed.” Throughout the transaction Erdmann acted for and on behalf of the defendants, who furnished the consideration for the purchase and had actual knowledge of the terms of the contract and deed. On the day Erdmann received the deed he conveyed to the defendants and the deed was recorded the following day.
In February, 1890, plaintiff commenced an action against the Manhattan Railway Company and the Metropolitan Elevated Railway Company to recover rental damages to the property which had accrued prior to the time of the conveyance to Erdmann. This action was settled on August 4, 1893, for $1,468. In July, 1892, the defendants brought an action against the railway companies for damages to the easements in said premises from the time they became the owners thereof, and to enjoin the maintenance of the railroad in front of the same. This action was settled on July 14, 1899, for $6,000, in consideration of which defendants released the railway companies from all claims for damages and conveyed to them all their right, title and interest to the easements in Allen street in front of their premises. The plaintiff had no knowledge of the settlement between the defendants and the railway companies
I think this judgment is right. The language in the contract, as well as the reservation in the deed, indicates, as it seems to me, that the plaintiff intended to reserve to itself all claims for damages, both as to depreciation of rental and to the impairment of the easements of light, air and access to the date of the deed, and that such intention was so understood by the defendants acting through Erdmann. The language is, reserving to the plaintiff “all claims for damages.” The consideration paid was fixed at the price stated, because both parties understood that the value of the premises had been depreciated by reason of the operation of the railway in front of them, and that the damages occasioned thereby were reserved to the grantor. The language used is of no particular importance so long as the court can discover from the instrument itself what the parties intended by the reservation. It is undoubtedly true that easements in public streets of light, air and access cannot be severed from the property to which they are appurtenant, and that the plaintiff could not, on parting with the land, reserve to itself those easements. It could, however, reserve the damages that his grantee might collect for the invasion of those easements, and as to such damages the grantee became a trustee for the grantor. (Schomacker v. Michaels, 189 N. Y. 61.) The reservation was, as urged by the.appellants, ineffectual to create a trust in the easements, but it did create a resulting trust by virtue of which the grantee became a trustee for his grantor as to all moneys received for the invasion or impairment of the easements. (McKenna v. Brooklyn Union El. R. R. Co., 184 N. Y. 391. See, also, Freund v. Biel, 114 App. Div. 400; affd., 193 N. Y. 662; Drucker v. Manhattan R. Co., 213 id. 543.)
It is further urged by the appellants that any action the plaintiff might have had is barred by the ten-year Statute of Limitations. (See Code Civ. Proc. § 388.) As has been indicated, the reservation in the deed of the plaintiff was ineffectual in reserving to itself any right of action against the railway companies.
The appellants also question the right of the plaintiff to bring the action. It appears in this connection that some fifteen years ago the plaintiff transferred its realty, funds and membership to another religious corporation. There is no evidence however, that the claim in suit was ever assigned, and the trustees of the plaintiff deny that any such assignment was made. At the trial plaintiff stipulated that it would tender releases executed by the other possible claimants as a condition of being awarded a judgment, and the interlocutory judgment so provides. While the defendants, on the evidence, are not entitled to this additional protection, neither party is in a position to assail the judgment upon that ground. The plaintiff never having been dissolved, and having title to the claim, the action was properly brought to enforce it.
It follows that the j udgment appealed from should be affirmed, with costs.
Judgment reversed and complaint dismissed, with costs to appellants in this court and in the court below. Order to be settled on notice.