Tibbits v. Cumberson

46 N.Y. Sup. Ct. 456

• Court: New York Supreme Court
• Decided: February 15, 1886
• Status: Published

Opinion

Barnard, P. J.:

This case is similar in principle to that of Taylor v. Hopper (62 N. Y., 649). In that case an owner of lands had made a map and filed it, in and by which a tract of land was laid out in lots. He sold by the streets and numbers indicated by the map. The streets were opened in part only. On one óf the paper streets the old frame barn and yard were situated, and the grantor refused to open the street through it. The court adjudged that the street be opened after a certain fixed time, and that judgment was affirmed in the Court of Appeals. In this ease, the map was made by one Martin e who owned the tract represented on it. Marti ne died, and in his will recognized the map lines as a boundary in a bequest to his wife. By the will, the executors had full power of sale given in respect to testator’s lands. The executors made a public auction of the lands according to the map filed, and this called for Grand street to be an open street between what is called Railroad avenue and the New York Post road. That part of Grand street between what is termed “ an unnamed street ” on the map and the New York Post road had and has .never been opened. At the sale, the plaintiff bought two lots on one of the map streets, and subsequently purchased of the defendant Cumberson two other lots on Grand street. Cumberson bought of the executors of Martine. Both deeds were governed by the maps in the description of the land. By these purchases, the plaintiff was entitled to have the streets opened as laid down upon the map, not as public highways, for the road authorities of the town can alone make them such by acceptation, bnt as open streets and ways according to the terms of the purchase, and as a right incident to the purchase. The map binds the grantor to carry out the plan lie proposed and under which he sold. It is not to be determined as if lands were sold which had no access to a public highway, and when a way of necessity is to govern, but as a thing of covenant, and a covenant by means o'f which the grantor ifiduced purchasers to buy his lands. The executors who sold a#fe bound to carry out the scheme. They had power given them, and they sold by the testator’s maps, and there is no reason why they should not be bound in respect to the road as their testator would have been. The defendant Cumberson bought by the map and sold by the map, and he is bound by it. (Matter of Eleventh Avenue, 81 N. Y., 436.)

The judgment should be reversed and a new trial granted, costs to abide event.

Pratt, J., concurred; Dykman, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.