In re Acquiring Title by City of New York

Appellate Division of the Supreme Court of New York

In re Acquiring Title by City of New York

257 A.D. 511, 13 N.Y.S.2d 587, 1939 N.Y. App. Div. LEXIS 7794

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 7, 1939

StatusPublished

This text of 257 A.D. 511 (In re Acquiring Title by City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Acquiring Title by City of New York, 257 A.D. 511, 13 N.Y.S.2d 587, 1939 N.Y. App. Div. LEXIS 7794 (N.Y. Ct. App. 1939).

Pincite

Opinions

Taylor, J.

This is a condemnation proceeding. The facts are undisputed. The award for damage parcel No. 25 was made in the sum of $4,400. Its payment was directed to be made as follows: To Effie Royster, claimant, $2,900, and to Federal Housing Administration, claimant, $1,500. Reduced to its lowest terms, the claim of the appellant Royster is that Effie Norton, while trespassing upon and pretending to be the owner of real property under a will of one Annie Elam, who died on February 8, 1936, seized of the real property which is damage parcel No. 25, borrowed from Morris Plan Bank a sum of money on her unsecured notes. Of such amount she expended $1,500 for improvements and repairs to the property here involved. The borrower, Effie Norton, knew that her title was being contested. As a result of proceedings instituted September 1, 1936, a decree was entered on December 17, 1936, in the office of the Surrogate’s Court of Queens county vacating the probate of the will under which she had obtained possession. That decree adjudged, in effect, that she had been guilty of fraud, deceit, duress and undue influence in procuring the purported will. This court unanimously afiirmed the decree, thus revoking the probate. (Matter of Elam, 251 App. Div. 748.) Thereafter, and in August, 1937, the deceased prior owner’s valid will was admitted to probate. This devised the property to Effie Royster, who finally ousted Effie Norton, the trespasser, and obtained possession in October, 1937.

Effie Norton had defaulted on her notes to the Morris Plan Bank. On March 25, 1937, the latter obtained judgment against her in the City Court of the City of New York, which judgment was never docketed in the county clerk’s office. Under applicable provisions of law, this judgment was assigned to the respondent, Federal Housing Administration. In February, 1938, when the city of New York took title to Effie Royster’s property by condemnation (damage parcel No. 25), Effie Norton and Federal Housing Administration each made separate claims therein. Each claimed an equitable lien for reimbursement for the improvements made during the time that Effie Norton was in possession under an invalid title.

The learned Special Term found that $1,500 of the Morris Plan Bank loans, which were guaranteed by the Federal Housing Administration, were actually expended for improvements and repairs on the damage parcel, and increased the value thereof to that extent; and awarding $4,400 for the taking of that parcel, it directed that the award be paid as above indicated. The Special Term dismissed the claim interposed by Effie Norton.

Upon the undisputed facts, the claimant Federal Housing Administration had no claim or lien upon the real estate thus [513]*513improved, and has none upon the award for damage parcel No. 25. The Federal Housing Administration’s right (if any) in the damage parcel came through Effie Norton, a trespasser, to whom the Morris Plan Bank made the loans thus guaranteed by the Federal Housing Administration, $1,500 of the proceeds of which loans were expended for improvements upon Effie Royster’s property without her consent. Effie Norton had no equitable lien upon the property for the value of the improvements. (Woodhull v. Rosenthal, 61 N. Y. 382, 396; Wood v. Wood, 83 id. 575, 581; Warner v. Warner, 199 App. Div. 159, 165.) Therefore, the Federal Housing Administration, which guaranteed the repayment to the bank by Effie Norton of her unsecured borrowings, part of which was thus expended for improvements, had no equitable hen upon the property thus improved by Effie Norton, the trespasser (vide Spruck v. McRoberts, 139 N. Y. 193); and consequently has no right to any part of the award.

Therefore, the final decree, so far as appealed from, should be modified (1) by striking therefrom the direction for payment of the sum of $1,500 of the award to the Federal Housing Administration, and the balance thereof, $2,900, to Effie Royster, and (2) by inserting in place thereof a direction that the entire award of $4,400 be paid to Effie Royster, claimant. As so modified, the final decree should be affirmed, with costs to the appellant.

Lazansky, P. J., Hagarty and Close, JJ., concur; Carswell, J., dissents and votes to affirm without modification, with opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

Taylor, J.

This is a condemnation proceeding. The facts are undisputed. The award for damage parcel No. 25 was made in the sum of $4,400. Its payment was directed to be made as follows: To Effie Royster, claimant, $2,900, and to Federal Housing Administration, claimant, $1,500. Reduced to its lowest terms, the claim of the appellant Royster is that Effie Norton, while trespassing upon and pretending to be the owner of real property under a will of one Annie Elam, who died on February 8, 1936, seized of the real property which is damage parcel No. 25, borrowed from Morris Plan Bank a sum of money on her unsecured notes. Of such amount she expended $1,500 for improvements and repairs to the property here involved. The borrower, Effie Norton, knew that her title was being contested. As a result of proceedings instituted September 1, 1936, a decree was entered on December 17, 1936, in the office of the Surrogate’s Court of Queens county vacating the probate of the will under which she had obtained possession. That decree adjudged, in effect, that she had been guilty of fraud, deceit, duress and undue influence in procuring the purported will. This court unanimously afiirmed the decree, thus revoking the probate. (Matter of Elam, 251 App. Div. 748.) Thereafter, and in August, 1937, the deceased prior owner’s valid will was admitted to probate. This devised the property to Effie Royster, who finally ousted Effie Norton, the trespasser, and obtained possession in October, 1937.

Effie Norton had defaulted on her notes to the Morris Plan Bank. On March 25, 1937, the latter obtained judgment against her in the City Court of the City of New York, which judgment was never docketed in the county clerk’s office. Under applicable provisions of law, this judgment was assigned to the respondent, Federal Housing Administration. In February, 1938, when the city of New York took title to Effie Royster’s property by condemnation (damage parcel No. 25), Effie Norton and Federal Housing Administration each made separate claims therein. Each claimed an equitable lien for reimbursement for the improvements made during the time that Effie Norton was in possession under an invalid title.

The learned Special Term found that $1,500 of the Morris Plan Bank loans, which were guaranteed by the Federal Housing Administration, were actually expended for improvements and repairs on the damage parcel, and increased the value thereof to that extent; and awarding $4,400 for the taking of that parcel, it directed that the award be paid as above indicated. The Special Term dismissed the claim interposed by Effie Norton.

Upon the undisputed facts, the claimant Federal Housing Administration had no claim or lien upon the real estate thus [513]*513improved, and has none upon the award for damage parcel No. 25. The Federal Housing Administration’s right (if any) in the damage parcel came through Effie Norton, a trespasser, to whom the Morris Plan Bank made the loans thus guaranteed by the Federal Housing Administration, $1,500 of the proceeds of which loans were expended for improvements upon Effie Royster’s property without her consent. Effie Norton had no equitable lien upon the property for the value of the improvements. (Woodhull v. Rosenthal, 61 N. Y. 382, 396; Wood v. Wood, 83 id. 575, 581; Warner v. Warner, 199 App. Div. 159, 165.) Therefore, the Federal Housing Administration, which guaranteed the repayment to the bank by Effie Norton of her unsecured borrowings, part of which was thus expended for improvements, had no equitable hen upon the property thus improved by Effie Norton, the trespasser (vide Spruck v. McRoberts, 139 N. Y. 193); and consequently has no right to any part of the award.

Therefore, the final decree, so far as appealed from, should be modified (1) by striking therefrom the direction for payment of the sum of $1,500 of the award to the Federal Housing Administration, and the balance thereof, $2,900, to Effie Royster, and (2) by inserting in place thereof a direction that the entire award of $4,400 be paid to Effie Royster, claimant. As so modified, the final decree should be affirmed, with costs to the appellant.

Lazansky, P. J., Hagarty and Close, JJ., concur; Carswell, J., dissents and votes to affirm without modification, with opinion.

Cite This Page — Counsel Stack

Bluebook (online)

257 A.D. 511, 13 N.Y.S.2d 587, 1939 N.Y. App. Div. LEXIS 7794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acquiring-title-by-city-of-new-york-nyappdiv-1939.

Opinions

Related

Cite This Page — Counsel Stack