Braker v. McMorrow

30 Misc. 390, 63 N.Y.S. 1016

• Court: New York Supreme Court
• Decided: January 15, 1900
• Status: Published

Opinion

Fitzgerald, J.

The plaintiff seeks to restrain the defendants from erecting a building on the west side of Central Park west, at a point twenty feet south of One Hundred and Seventh street, adjoining the premises Ho. 468 Central Park west. The plaintiff bases his claim to the three feet of property in dispute on his record title and upon adverse possession for a period extending over forty years. It appears for a long time prior to May 7, 1852, the premises in question formed part of a tract of land extending from about One Hundred and Third street to the northerly side of the premises above described, and were owned and possessed by James Vanderpoel and Thomas W. Olcott, who purchased the same in June, 1841, from Thomas Addis Emmett, master in chancery. The executors of Vanderpoel conveyed their interest to Henry T. Morgan. Thomas W. Olcott and wife conveyed their interest in same to Richard L. Wells, who thereafter conveyed same to Henry T. Morgan. Henry T. Morgan and wife, by deed dated June 24, 1879, and recorded December 20, 1879, conveyed to Alexander C. Morgan certain premises. The complaint, at folio 32, says (referring to this conveyance): “That at the time the conveyance above referred to, from Henry T. Morgan to Alexander 0. Morgan, was made and delivered, and prior thereto, the description of said premises apparently did not include anything north of a point 181 feet and 9 3-4 inches northerly from the north side of One Hundred and' Sixth street, which point was twenty feet south of the corner of One Hundred and Seventh street and Central Park west ” (then Eighth avenue). Alexander 0. Morgan conveyed to Edwin D. Morgan by two deeds certain premises; subsequently Edwin D. Morgan died, leaving a will, from which it appears that the strip of three feet, together with other property, was devised to his brother, Homer Morgan. The executors of Edwin D. Morgan conveyed premises on the west side of Eighth avenue (extending to a point twenty feet south of One Hundred and Seventh street) to Gilbert A. Webber, and by subsequent conveyances the title to said premises vested in the plaintiff. Albert G. Bearing, who, in conjunction with John J. Dennis and John H. Tolies, were the owners of the premises in question, erected the building now the property of the plaintiff. On February 24, 1890, the said Bearing and Tolies executed an agreement with the building department by which the space of three feet was reserved for the .use of light and air for said premises on the north side thereof. Albert G. Bearing swears “ that he was aware at that time that he had no title to said strip of three feet on the north side, but made said agreement in order to get his plans passed in the building department.” John H. Tolies swears “ that he did not consider that he had any title whatever to the three feet adjoining said premises running on a line with Central Park west in a northerly direction, which is the three-feet strip in question in this action, and, therefore, did not erect said building to cover said entire premises as he would have done had he been the owner thereof.” By deed recorded April 20, 1899, Alexander C. Morgan and John A. Ballister, executors of Homer Morgan, conveyed to Florence Gray the three feet on the north side of premises Ho. 468 Central Park west; said deed by express terms provided as follows: “ That the premises hereinafter described form part of a tract of land the title to which stood in the name of Alexander 0. Morgan, one of the executors below named, the northern portion of which tract was conveyed by said Alexander C. Morgan to Edwin B. Morgan, and all the remaining portion to Henry T. Morgan in his lifetime, who devised the same to his brother, Homer Morgan, now deceased; that it was intended by said Alexander 0. Morgan to include the premises hereinafter described in the conveyance to said Edwin B. Morgan, and that all of the interest of said Edwin B. Morgan has by various mesne conveyances become vested in and now belongs to the party of the second part thereto.” On June 21, 1899, the defendant purchased the said three feet, together with the property extending to the southwest corner of Central Park west and One Hundred and Seventh street, from Florence Gray, and the title to said property was passed and approved by the Lawyers’ Title Co., and a policy issued thereon covering premises on the west side of Central Park west, extending to a point nineteen feet eight inches south of One Hundred and Seventh street. The affidavits submitted as to the erection and maintenance of the fence are so conflicting that they must be entirely eliminated from consideration. It appears that plaintiff’s claim for an injunction is not well founded and the temporary injunction is vacated, and motion for a permanent injunction denied.

Motion denied.