In re City of New York

161 A.D. 944, 146 N.Y.S. 827

Opinion

Per Curiam:

The city’s contention that damage parcel Mo. 85 had been burdened with easements of light and ah', and, therefore, should receive only a nominal award cannot now be considered. That ground was presented upon the former condemnation proceedings, both here (143 App. Div. 564) and in the Court of Appeals (208 M. Y. 570). The question of easements burdening the land condemned having been determined against the city cannot be reopened upon the present record. A further review of the testimony confirms the conclusion of the learned referee that a title in Messrs. Wild & Co. by adverse possession is not established. The rights of Payne under the conveyance of 1898, upon the record as made in the condemnation proceedings, are not materially changed by the present evidence as to the negotiations leading up to that sale. With some transposition of clauses the selling contract closely follows the terms of the deed. The words “all the portions of said tract” are not to be read alone. Such a general expression of purpose or intent ordinarily does not have the broad scope to embrace and grant a separate and distinct subject-matter, but the language is. rather to be taken as evidence of an intent to pass some incidental right or appurtenant interest. Such a purpose is certainly the more reasonable one to be applied to general expressions where the existence of such a separate parcel was not then realized by either party to the conveyance. The further proofs and the able argument in support of the claimant Payne do not lead us to a different view from that expressed in the former opinion in the condemnation proceedings. The order of the Special Term confirming the referee’s report is, therefore, affirmed, with ten dollars costs and disbursements to the respondent. Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred. Order of the Special Term confirming referee’s report affirmed, with ten dollars costs and disbursements to respondent.