Town of Greenburgh v. Dorolyn Building Corp.

257 A.D. 1013, 13 N.Y.S.2d 642, 1939 N.Y. App. Div. LEXIS 8916

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1939
• Status: Published

Opinion

In an action for specific performance of a contract to purchase real property, defendant appeals from an order granting plaintiff a motion for judgment on the pleadings. Order affirmed, with ten dollars costs and disbursements. Defendant contends that the title tendered by plaintiff was unmarketable because eighty-eight holders of certificates of participation in a mortgage on the property were not made parties to a tax-hen foreclosure through which plaintiff acquired title. Paragraph (f) of article I of a declaration of trust, which was made before the tax-hen foreclosure action was commenced, by trustees appointed under chapter 745 of the Laws of 1933, does not bear the interpretation sought to be given to it by defendant. The paragraph deals with definitions, and while the language used in it is inept, its sole purpose and intention was to limit the declaration of trust to the one series in respect of which it was made. Defendant’s interpretation of paragraph (f) would nullify the clear declarations in the body of the instrument and would reach the unsound result of giving the trustees absolute ownership of the trust estate, without the legal title. Because of the large number of certificate holders it was not necessary to make them parties to the tax-lien foreclosure, in which they were properly represented by the trustees. (Landon v. Townshend, 112 N. Y. 93, 99.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur,