In re Nassau County Relative to Acquiring Title to Brook

278 A.D. 834, 104 N.Y.S.2d 426, 1951 N.Y. App. Div. LEXIS 4931

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1951
• Status: Published

Opinions

Memorandum by the Court. In a condemnation proceeding, it appears that an eight-foot strip of the parcel in suit, and a right of way to adjoining premises, were taken by the County of Nassau; that more than a year thereafter respondents contracted to convey the whole parcel and their rights in the right of way to appellant; that the contract provided that the sale was subject to the acquisition by the county of the eight-foot strip; that thereafter title passed to appellant, respondents delivering a bargain and sale deed purporting to convey the whole parcel, by metes and bounds, and the right of way; that the deed did not except the eight-foot strip referred to in the contract. It also appears that upon the closing of title an affidavit of title was furnished by one of the respondents; that appellant executed a purchase-money mortgage describing the whole parcel by metes and bounds, referring to the right of way, and warranting title; that subsequent to the delivery of title it became known that an .award had been made for the taking of the eight-foot strip and the right of way in the name of an unknown owner, and the award deposited. Both parties hereto petitioned the court in the condemnation proceeding for payment of the award. It appears from the petitions that at the time of entering into the contract neither party knew that title had vested in the condemnation proceeding. Respondents made no formal claim, to the award until more than a year and a half after title had passed to appellant, and then only after prior claims had been made by appellant and another person. Respondents contended that they are entitled to the award inasmuch as they were the owners of the parcel at the time of the taking in condemnation. The appellant contended that on the facts the parties intended an equitable assignment of the award to the appellant. The application of the respondents, sellers, was granted, and the application of the appellant, purchaser, was denied.

Orders of the County Court, Nassau County, reversed on the law and the facts, with one bill of $10 costs and disbursements, respondents' application denied, without costs, and appellant’s application granted, without costs; the order to provide that there shall be paid to appellant out of the amount of the award now on deposit with the County Treasurer, Nassau County, as compensation to the owner of Parcel No. 2 herein, such amounts as the court shall determine.

Prom the facts stated in and inferable from the record, it appears that the intention was that the sellers would convey the whole estate and interest described in the instruments or, in the event of their inability to do so, appellant was bound to accept an estate and interest diminished by a taking in condemnation and to receive any award in condemnation in lieu of the portion of the estate and interest which the sellers might be unable to deliver. It reasonably appears from the record that the intention of the parties was to construe the written instruments made and delivered as assignments of the grantors’ interest in the award made in condemnation.