146 N.Y.S. 593 | N.Y. App. Div. | 1914
In 1880 Henry Du Bois, who was then the owner of a tract of land situated in the town of Oyster Bay, in the county of Queens, filed in the office of the county clerk of said county a map of the land asa “Map of Clifton Park,” etc. The tract was irregular in shape, but in the center, as near as may he, he platted out a square plot which he described as ‘ ‘ Park, ” and through the same map, in various directions, he likewise platted out a number of proposed streets. Lots were likewise platted out and numbered, every one of which fronted on some of the platted streets, and a large number of which faced the square plot marked “ Park.” He started out to sell these various lots by conveyances, each of which referred to the platting map of 1880, and in which each lot was described simply by its number on said map. In 1885 he conveyed to his wife, Martha Du Bois, through a duct or intermediary of title, all the lots' numbered on said map, of which he had not previously disposed, and she in turn conveyed to purchasers practically all the remainder of said lots by deeds which referred to the map of 1880, and in which the premises conveyed were described by the respective lot numbers shown on said map. Long before the beginning of this action every lot shown and numbered on the map of 1880 had been conveyed to purchasers by either Du Bois, husband or wife, and every proposed street had been accepted by the public. According to well-settled rules of law, when Du Bois, either husband or wife, conveyed any of the lots platted on said map of 1880, as to their grantees at least, there was an implied covenant of easement in the plot marked on said map asa “ Park.” Unquestionably this was so as to every lot conveyed which fronted on the “Park,” and as the tract in question was but small, and every lot numbered on the map was located but a short distance from the “ Park,” said easement was a beneficial right to each of said lots, and a strong inducing cause of purchase. In addition
The fact that at the time the offer was made originally, in 1880, the village of Sea Oliff had not been incorporated, is of no importance. When that village came into legal existence subsequently, it could accept the offer of dedication for public use. (City of Cincinnati v. Lessees of White, 6 Pet. 431.) If it made such acceptance it was not required to do so by formal act, even if there was a statute providing for formal acceptance, unless said statute declared such form of acceptance exclusive. (Matter of Hunter, 164N. Y. 365; 163 id. 542.) Both the grantees under the Du Bois deeds and the village itself could unite in maintaining this action. (Trustees of Watertown v. Cowen, 4 Paige, 510.) It is indisputable on the record before us that for some years prior to the beginning of this action the village of Sea Oliff had exercised acts of regulation and control of this “ Park ” plot, and that it was treated as public property on the assessment maps. There is a controversy in the record as to whether either or both the Du Bois owners had revoked their offer of dedication before the village attempted acceptance of the offer,, and much time was given to this controversy in the evidence, the learned opinion of the trial court,
We find no conflict between the opinion above indicated and that declared in Reis v. City of New York (188 N. Y. 58) and Foerster v. Eilers (60 Misc. Rep. 453; S. C., 140 App. Div. 893; S. C., 204 N. Y. 631). In these cases the question was as to the extent' of an easement in proposed streets, and it did not involve the question of a dedication of a “park” or “square.”
The judgment should be affirmed, with costs.
Jenks, P. J., Burr, Rioh and Stapleton, JJ., concurred.
Judgment affirmed, with costs.
