First Reformed Dutch Church v. Croswell

210 A.D. 294, 206 N.Y.S. 132, 1924 N.Y. App. Div. LEXIS 6714

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 12, 1924
• Status: Published

Opinion

H. T. Kellogg, J.:

The estate of the plaintiff was limited to endure “ so long as ” a church or meeting house, devoted to the religious purposes of the plaintiff, was “ kept and used ” upon the premises. The words of the grant were words, not of condition, but of limitation. “ Words of limitation mark the period which is to determine the estate; but words of condition render the estate liable to be defeated in the intermediate time.” (4 Kent Com. [14th ed.] *126.) “ Among the instances of collateral limitations are, to a man and his heirs, tenants of the manor of Dale; or to a woman during widowhood; or to C till the return of B from Rome; or until B shall have paid him twenty pounds. (4 Kent, 129; 1 Shep. Touch., 125; 2 Crabb’s Law of Real Prop., § 2135; 2 Bl. Com., 155; Fearne, 12,13, and notes.) In respect to such limitations, the rule is, that 1 the estate will determine as soon as the event arises, and it never can be revived.’ (4 Kent, 129, and cases cited; Lewis on Perpet., 657; Crabb’s Real Prop., § 2135.)’’ (Leonard v. Burr, 18 N. Y. 96.) “ The material distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs.” (4 Kent Com. [14t,h ed.] *126. See, also, Gray Perp. §§ 12, 13, and Fowler Real Prop. [3d ed.] 161, 163.) As the period of time, during which a church use should be made of the premises in question, constituted the period during which the estate of the plaintiff therein should endure, it follows that upon a cessation of the church use the plaintiff’s estate would have terminated whether the plaintiff had procured the disuser or otherwise. Moreover, since the plaintiff’s estate was not subject to a condition subsequent of forfeiture or abridgement, no conveyance by the grantor’s heirs to third persons would have had the effect, as by the release of a condition, to extend the estate. In these respects the arguments of the plaintiff fail. It does not follow, however, that the plaintiff must fail in the action. The premises in question did in fact cease to be used for the maintenance of a church thereupon. The disuser, however, was a consequence, not a cause, of a loss of title by the plaintiff. The city' of New York, in condemnation proceedings, seized the estate of the plaintiff. It also seized the rights of reverter belonging to the heirs at law of the grantors. The seizure was of the entire title, wherever resident, by a single act of appropriation. There was, therefore, no interval of time between the Seizure of the plaintiff’s estate and the seizure of the rights of the heirs at law during which there could have been a reverter of title to the heirs because of a church disuser of the premises necessarily consequent upon the seizure. At the moment of appropriation there had been no disuser. At that moment the estate then being enjoyed by the plaintiff might have continued forever. At that moment the rights of the heirs were mere possibilities. These rights possessed no value capable of estimate. All that was valuable was the estate of the plaintiff'. Therefore, the money paid in by the city of New York should be paid to the plaintiff as for the only thing of value taken.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.