In the Matter of Opening HAMILTON STREET from Sanford Street to Vernon Avenue, First Ward, Borough of Queens, City of New York. MARY B. TRIMBLE, Appellant; STUARD HIRSCHMAN and THE CITY OF NEW YORK, Respondents.
APPEAL by Mary B. Trimble from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 30th day of November, 1910, confirming the report of a referee.
Merle I. St. John, for the appellant.
Philip B. La Roche, Jr. [ Joseph A. Flannery with him on the brief], for the respondent Hirschman.
Norman J. Marsh [Joel J. Squier, William B. R. Faber and Archibald R. Watson with him on the brief], for the respondent the city of New York.
This is an appeal from an order of the Special Term determining the ownership of an award made to 'unknown owners' in a proceeding conducted by the city of New York to open a public street in that part of the borough of Queens which was known formerly as Long Island City. The street in question is Hamilton street, and it was shown on the map of Long Island City as a proposed public street for many years prior to the consolidation of Long Island City with the city of New York. The proceedings to acquire the land necessary for public street purposes were begun by the city of New York in 1902. At that time one Mary B. Trimble was the owner of a large tract of land through which the proposed street was projected. Her ownership arose under a deed to her made in 1901. In 1902 the city of New York became vested in fee for public uses of the land forming the bed of the street, but no award of damages was made until 1908. At the time of the vesting of title in the city, Mary B. Trimble was still the owner of the land. In 1905 Trimble conveyed the large tract of land by a deed, describing the tract by metes and bounds, to one Connor. The deed contained the usual covenants of warranty, including one of seizin. After the description of the land by metes and bounds there was a clause in the deed as follows: 'Subject to any rights that Long Island City, now a part of the City of New York, or the public may have in and to any streets or avenues included within the above metes and bounds, as laid out on the Official Map of Long Island City; also subject to any rights conveyed by the Astoria Homestead Company to the Steinway Railway Company by conveyance dated September 23rd, 1892, and recorded,' etc. Connor conveyed the same tract to one Holmes by deed dated May 15, 1906, containing a description by metes and bounds, together with the same 'subject' clauses. In 1908 a substantial award was made to 'unknown owners' for that portion of the tract which had vested in the city in 1902. Connor made and delivered to his grantee Holmes an assignment of
whatever rights he had in any award that should be made in the street opening proceedings. Thereafter Holmes conveyed the lands in question to one Hirschman and assigned to him whatever interest he acquired in such award from Holmes. Hirschman thereupon applied at Special Term to have himself declared the true owner of the award in question. A reference was ordered to inquire into the facts, and Mary B. Trimble appeared and contested Hirschman's claim of right to the award. On the coming in of the referee's report an order was made adjudging Hirschman to be entitled to the award, and from that order Trimble now appeals. Under the well-settled law, when the land in the street vested in the city, the award to be made therefor was a chose in action or the personal property of the then owner of the land, and when the award was made actually, it related back to the time when the title was divested from the former owner. ( King v. Mayor, etc., 102 N.Y. 171; Harris v. Kingston Realty Co., 116 A.D. 704; Matter of Mayor [Trinity Ave.], Id. 252.) Generally, the right to such award when thereafter made would not pass under a subsequent conveyance of land from the person so entitled to the award unless an intent to make an assignment of the award is express or properly to be inferred. (Cases above cited.) The learned court at Special Term based a finding of an intent to assign the award on the following circumstances. It held that as title to the land in the street had passed from Mrs. Trimble to the city before she conveyed to Connor by metes and bounds, and that as her deed contained full covenants of warranty including one of seizin, there was an immediate breach of the covenant of seizin when she conveyed to Connor, so far as the land in the street was concerned, and it must be deemed that she intended to substitute her right to the award in the place of the land as to which there was an immediate breach of the covenant of seizin and so transfer it to her grantee in liquidation of the damages arising from the breach. (See 69 Misc. 369.) It is contended that this result is justifiable under the authority of Magee v. City of Brooklyn (144 N.Y. 265); Matter of Thompson (89 Hun, 32; affd., 148 N.Y. 743); Shields v. Pittsburg (201 Penn. St. 328). Before considering the application of these authorities, it is
necessary to consider first whether there was a breach of the covenant of seizin in the deed of Trimble to Connor. The settled rule of law is that covenants in a deed are commensurate with the grant and never enlarge the grant itself. In other words, they relate only to what is granted and do not cover what is excepted or omitted from the grant. ( King v. Mayor, etc., 102 N.Y. 171; Warvelle Vendors, § 240; 8 Am. & Eng. Ency. of Law [2d ed.], 66-68; 11 Cyc. 1059.) While in the deed from Trimble to Connor there is a description by metes and bounds of a large tract of land through which Hamilton street ran at the time of the conveyance, yet the grant was made subject expressly 'to any rights that Long Island City, now a part of the City of New York, or the public may have in and to any streets or avenues included within the above metes and bounds, as laid out on the Official Map of Long Island City.' Now at the time of this conveyance, the title to the land in Hamilton street was vested in the city of New York for public use as a street. The proceeding to acquire such title was one begun to open Hamilton street, as laid down on the official map of Long Island City, which by the Greater New York charter had become the official map of the city of New York. This proceeding was public and all the world was charged with notice of its pendency. The vesting of title in the city in 1902 was a public act of which notice was imputable and information easily obtainable. Ordinarily the 'subject' clause quoted from the deed of Trimble to Connor would except from the grant whatever public rights had been theretofore acquired by the city, and, therefore, as to such existing rights there was no breach of the covenant of seizin, for it did not extend beyond the grant itself. It is urged, however, that the 'subject' clause above quoted cannot be given this effect. The ground of this argument is that this clause is practically a copy of similar clauses to be found in a number of deeds in the chain through which Trimble acquired title, and that, as in such deeds, it had no practical importance and was without practical effect, so in the deed from Trimble to Connor it must be deemed to be a mere conveyancing repetition made without intended application to then existing conditions. At the time of these earlier deeds no
public interest had been acquired in any streets shown on the official map of Long Island City, except such as might possibly arise from the mere laying down of the proposed street on the official map, and no public right or interest in the lands to be covered by the proposed streets did in fact arise from the mere laying out of the street on the official map, as such in itself was not an appropriation of the land to a public use. ( Forster v. Scott,136 N.Y. 577; Mott v. Eno, 181 id. 346; Matter of City of New York [Avenue D], 200 id. 536.) In any event, though such 'subject' clauses in the earlier deeds were unnecessary under the circumstances then existing, they cannot be said to have been meaningless, for they were clearly precautionary and intended to apply against a possible contingency, as to the legal effect of which the grantors insured themselves against. There had been a decided change of conditions when a similar clause was inserted in the deed from Trimble to Connor, and its use there was likewise precautionary and, more than that, on its face it had application to existing facts publicly known. In the earlier deeds, this clause was intended to apply, if the facts and the law required its application. Therefore, how can it be said, with show of reason, that it did not apply later in the Trimble deed when there were conditions in fact and law to which it might apply? The deed which is involved in this controversy is one between Trimble and Connor. According to the settled principles of interpretation, every clause in it is to be given its appropriate meaning. It should not be robbed of meaning with relation to then existing facts, simply because a similar clause used in the deeds preceding in the chain of title had no practical application, under the conditions then existing. It is urged, however, that Simms v. City of Brooklyn (87 Hun, 35; affd., 147 ...