73 N.Y.S. 51 | N.Y. App. Div. | 1901
This action was begun in October, 1898, to recover certain land upon breach of a condition. The land was conveyed in 1873 by the respondent to Long Island City, the predecessor of the appellant. After the description, the deed contained this clause: “ Said plot of land is to be used by said Long Island City for the purpose of building a city hall thereon, and this conveyance is made upon the express condition that in case the said plot of ground above described shall ever cease to be used by said Long Island City for a city hall, or other similar city buildings, then, and in that case, the said plot of land shall revert back to the parties hereto of the first part as if this conveyance had not been made.” At the trial it was admitted that there was no building upon the land, and that none had ever been placed thereon. It appeared that early in 1898 steps had been taken as far as the approval of a recommendation by the board of public improvements of the defendant, transmission of such approval to the board of estimate and apportionment, and a reference by that board to one of its members for investigation and report.
I think that the condition of the deed was subsequent. In Nicoll v. New York & Erie R. R. Co. (12 N. Y. 121, 130) it was said: “ Whether a condition be one or the other (i. e., precedent or subsequent) is matter of construction and depends upon the intention of the party creating the estate. (4 Kent, 124; 1 Term R. 645 ; 2 Bos. & Pull. 295; 3 Peters’ U. S. R. 346.) In the latter case Marshall, Oh. J., said: ‘ If the act (on which the estate depends) does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole instrument, the condition is subsequent.’ ” (See, too, Underhill v. Saratoga & Washington Railroad Co., 20 Barb. 455, 459; Towle v. Remsen, 70 N. Y. 303, 311.) And though no precise technical
The deed is silent as to the time of performance, but the law will imply that performance must be within a reasonable time. (Washb. Real Prop., supra, 12; Stuyvesant v. Mayor, 11 Paige, 414; Hayden v. Stoughton, 5 Pick. 528; Allen v. Howe, 105 Mass. 241.) The neglect for twenty-five years was held by the court (Gaynor, J., presiding) to work a breach of the condition ; so the first question presented is whether the Special Term was right in this determination. The city was ready to take the conveyance, whose purpose was to provide a site of a building for the city’s business. Such a structure might almost be classed as a municipal need arising at the beginning of the city’s life, and not within the cate gory of public institutions such as libraries, parks or public gardens, which are the marks of municipal maturity. No good reason sug
The appellant did not offer any evidence to show or tending to show that the lapse was not unreasonable, but the able and learned counsel for the appellant argues that as at the time of the conveyance the land was unimproved farm land, surely the parties would, not have intended that a city hall should be built until the land became adapted for that purpose. But there is no testimony offered to show that the land remained unimproved farm land, while it does-appear that at the time of conveyance the land was situate in an incorporated city, and that shortly thereafter, in 1874, the city
The learned counsel for the corporation, stating that the learned Special Term found that the reasonable time did not exceed ten years, contends that it therefore was the duty of the respondent to plead the breach, and assert the right of re-entry on the lapse of that period, and that inasmuch as they had a right to waive the breach, their failure to assert the right of re-entry has estopped them between the end of the ten years and the time of the beginning ■of this suit. And he points out that the local improvements made shortly aftér the conveyance were ultimately paid for by me city to the amount of $7,000, and that during the period subsequent to the lapse of ten years, the land escaped taxation, as the title vested in Long Island City for public purposes, and thus the defendant was misled and deprived of a part of its revenues, while on the other hand a reverter now gives the land to the plaintiff freed from the burden of taxation from that time. The learned counsel cites this rule from 2 Pomeroy’s Equity Jurisprudence (281, 282): “ Acquiescence consisting of mere silence may also operate as a true estoppel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract. The requisites of such •estoppel have been described. A fraudulent intention to deceive or mislead is not essential. All instances of this class in equity, rest upon the principle: ‘ If one maintain silence when in conscience he ought to speak, equity will debar him from speaking when in conscience
The judgment also awards $3,330 damages based upon the rental value of the lands from the time the action was begun until the trial thereof. There can be no question as to the amount of the damages, for it was admitted on the trial that the value of the use and occupation of the premises was $1,600 a year, and the time intervening the beginning of the action and the trial was two years and one month. But the learned counsel for the appellant contends that the award was unsupported by any proof or finding. He insists that no proof was offered to show that the defendant was in possession of the property at the time of trial or for the period covered by the award of damages. It is said that the land was vacant; that no proof was offered to show actual possession ; that the complaint simply alleges that the defendant was in possession and that the court so found, and that the mere claim to right of possession — a constructive possession — does not constitute an ouster as against the legal title, and cannot sustain any award of damages. The 7th paragraph of the complaint is: “That the defendant, The City of New York, is now in possession of the said premises, or claims to be entitled to the possession thereof, as successor, by virtue of law, of the said Long Island City, the grantee named in the said deed of conveyance.” I think that the allegation was thus pleaded in the alternative in order to meet the fact that Long Island Gity was consolidated with the city of New York. This allegation was not denied, while it was denied that the plaintiff was entitled to the possession as alleged in the 8th paragraph of
The judgment should be affirmed, with costs.
Goodrich, P. J., Bartlett, Woodward and Sewell, JJ., concurred.
Judgment affirmed, with costs.