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In re Application of City of New York

Supreme Court of New York, Appellate Division

May 3, 1912

In the Matter of the Application of THE CITY OF NEW YORK, Appellant, Respondent, Relative to Acquiring Title, etc., for the Opening and Extending of the Parkway, etc., between Grand Boulevard and Concourse and Claremont Park at Weeks Avenue, in the Twenty-fourth Ward, Borough of The Bronx, City of New York. HAROLD SWAIN, Respondent, Appellant.

Page 483

APPEAL by The City of New York and by Harold Swain from parts of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of October, 1910, confirming the report of commissioners of estimate and assessment herein.

COUNSEL

L. Howell La Motte, for the appellant, respondent.

Harold Swain, for the respondent, appellant.

SCOTT, J.:

In this proceeding we are called upon to consider appeals by Harold Swain and by the city of New York.

The latter appeals from so much of the order of the Special Term as sustains the objections to the awards of the commissioners of estimate and assessment respecting damage parcels Nos. 1 and 2, and remits the proceeding, so far as concerns these parcels, to said commissioners for reconsideration and correction. Harold Swain appeals from so much of the order as confirms the report of said commissioners respecting damage parcels Nos. 19 and 23.

The order was otherwise appealed from by the city, but we are informed by counsel that all appeals except those above noted have been withdrawn.

The appeal of the city from so much of the order as affects damage parcels Nos. 1 and 2 presents the same question that has already been twice considered by this court and the Court of Appeals, as to the allowance to be made for 'transplanted' houses. (Matter of City of New York, Briggs Avenue, 132

Page 484

App.Div. 930; affd., 196 N.Y. 255; Matter of City of New York, Hawkstone Street, 137 A.D. 630; affd., 199 N.Y. 567.) Although the respondent argues with some warmth that these cases were wrongly decided, we do not consider it necessary to re-examine them, but shall content ourselves with inquiring whether the present case is covered by them.

The respondent Swain owned the property known as damage parcels Nos. 1 and 2 situated at the corner of Belmont street and Grand boulevard which were to be acquired in this proceeding. He also owned a house which stood partly on the land which had been acquired by the city of New York for the opening of Hawkstone street. In order to make this house available he had to move it to a new location, and he selected the lots to be acquired in this proceeding as damage parcels Nos. 1 and 2. The commissioners in this proceeding were appointed on April 13, 1906. At some time prior to that date the respondent Swain had begun the excavation of a cellar on the land included in damage parcels Nos. 1 and 2. Whether that excavation was made with reference to the particular building which was afterwards moved upon this lot is not clear. After the commissioners were appointed, and after he had notice of their appointment, he proceeded to build stone foundations in the excavation. In order to move the house from Hawkstone street to the foundation prepared for it on damage parcels Nos. 1 and 2 it was necessary to carry it across the Grand boulevard, a public highway, and to do this it was requisite to obtain a permit from the president of the borough of the Bronx. At first such permit was refused, because it appeared that respondent intended to place the house upon land to be presently acquired in this proceeding which was then well under way. Thereupon the respondent professed to change his plans, and represented that it was his intention to place the house upon other property owned by him outside of, but adjacent to, the land to be acquired herein. Upon the faith of this representation a permit was granted to carry the house across the highway. Having moved it across under the permit thus obtained the respondent again changed his plans (if indeed there had ever been any change in them) and proceeded to 'plant' the house on the foundation which he had prepared

Page 485

on damage parcels Nos. 1 and 2. He now seeks to recover the value of the house as well as the value of the lots. The commissioners refused to make any award for the house, but the Special Term, deeming the respondent entitled to such an award as he claims, has referred the proceeding back for reconsideration in this regard. Hence this appeal by the city. No complaint is made by either party as to the amount awarded for the land. The sole question is whether this house had, when title vested in the city, become so attached to the land as to have become part of the realty. It would serve no useful purpose to enter upon an extended discussion of the law applicable in such cases. That was done in Matter of City of New York, Hawkstone Street (supra). It was then held that in order to find that a chattel had been so attached to the realty as to become a part of the real estate it must appear, among other things, that it was the intention of the party making the annexation to make a permanent accession to the freehold, and that the permanency of the attachment does not depend so much upon the manner in which the thing is attached as upon the notice and intention of the party in attaching it. Applying these rules to the present case it is impossible to find that the house in question was moved onto damage parcels Nos. 1 and 2 in good faith with the expectation and intention that it would become a permanent accession to the realty. On November 2, 1906, the board of estimate and apportionment, pursuant to the authority vested in them by law, adopted a resolution that title to the property to be acquired in this proceeding should vest in the city of New York on November 26, 1906. Of this resolution the respondent had knowledge. It was after that resolution had been adopted, to wit, between November seventeenth and twenty-fourth, that respondent moved the house onto damage parcels Nos. 1 and ...


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