
    (72 Hun, 134.)
    CONKLING et al. v. ZEREGA
    (Supreme Court, General Term, First Department.
    October 13, 1893.)
    Contracts—Construction.
    While the owners of land were prosecuting claims against a city for the taking of portions of the land, an award was made; but before it was paid one of the three owners conveyed his interest in the land by an instrument which provided “that, in case any awards are made for taking any portion of said property, then the party of the second part shall refund to the party of the first part one-third the amount which shall be paid for damages to said premises, it being understood that the party of the first part is not to receive any portion of awards hereafter made.” Held, that by such conveyance the grantor was not entitled to any portion of another award, subsequently made.
    Appeal from circuit court, New York county.
    Action by Theodore Conkling and Eugene Conkling against Lizzie H. Zerega on contract. From a judgment entered on a verdict directed for plaintiffs, defendant appeals.
    Reversed.
    March 3, 1868, a part of the Bloomingdale road was closed by the board of commissioners of Central Park, pursuant to chapter 697 of the Laws of 1867. ■ Adjacent to this road is a plot of ground known in this litigation as “Block No. 1,267.” At about the same time, the date not appearing, part of the block was taken for the purpose of opening 110th street. The record does not definitely show who owned the fee of this block at the time the city closed Bloomingdale road and opened 110th street. It is alleged in the complaint that for a number of years prior to May 10, 1871, Elizabeth M. Conk-ling owned the property, which allegation is not denied in the answer; but it is also alleged in the complaint, and not denied, that May 15, 1868, Elizabeth M. Conkling, Elizabeth P. Conkling, Jonas E. Conkling, Luella S. Conk-ling, Thomas W. Conkling, and Lizzie H. Zerega mortgaged the property to William B. Astor. It is alleged and admitted that on May 10, 1871, Elizabeth M. Conkling, being seised of the fee, conveyed the premises to Thomas W. Conkling, Elizabeth P. Conkling, and Lizzie H. Zerega, who became the owners thereof, as tenants in common, each owning an undivided third interest. On the 17th of April, 1873, said three tenants in common entered into a contract with a firm of attorneys by which they were to prosecute the claims of the owners for damages for one-third of the amount which might be collected. On the 3d of September, 1873, an award of $3,264 was made against the city, and in favor of Thomas W. Conkling, Elizabeth P. Conk-ling, and Lizzie H. Zerega for the land taken for opening 110th street. On the 10th of January, 1874, Elizabeth P. Conkling contracted to sell and to convey, on the 20th of the same month, her third interest in the land, to-Lizzie H. Zerega, by an instrument which contained the following provision: “And the said party of the second part hereby agrees that, in case * * * any awards are made by the city for taking away any portion of said property, then, in such an event, said party of the second part will refund to-the party of the first part * * * one-third amount which shall be paid for damages to said premises, * * * less one-third of the expense of * * * obtaining such award; it being understood, however, that the party of the first part is not to receive any portion of awards hereafter-made.” February 1, 1874, the award of September 3d was paid to, and divided between, Elizabeth P. Conkling, Thomas W. Conkling, and Mrs. Zerega. On the 11th of November, 1876, Thomas W. Conkling and Lizzie H. Zerega, who were then the owners of the fee of the property, filed a petition with the board of assessors of the city of New York for the assessment of the. damages caused to their property by closing the Bloomingdale road. In December, 1880, the damages were assessed, and on the 27th of April, 1883, they were paid to the petitioners; Mrs. Zerega receiving $2,074.64, two-thirds of the net amount realized from the award. Before this action was begun, Elizabeth P. Conkling had assigned all of her claims against the defendant to the plaintiffs, who brought this action to recover one-half of the amount received by Mrs. Zerega for closing Bloomingdale road, upon the-theory that under the contract she became liable to pay Mrs. Conkling one-third of the damages awarded.
    Argued before VAIN BRUNT, P. J., and FOLLE TT, J.
    Hathaway & Montgomery, (H. G-. Atwater, of counsel,) for appellant.
    Abraham Gruber, for respondents.
   FOLLETT, J.

The cause of action alleged in the complaint, and sought to be established on the trial, is that the defendant, by the clause quoted from the contract of January 10, 1874, became liable to pay to the plaintiffs’ assignor one-third of the damages awarded for closing Bloomingdale road. ¡No other ground for the recovery of the sum for which the verdict was directed is stated in the complaint, nor was there any evidence given on the trial which tends-to support, upon any other theory, the judgment. The sole question is, did the defendant become liable, under the clause quoted from the contract, to pay over any part of the damages awarded' on account of the Bloomingdale road? The language is not ambiguous, and it is provided, in clear terms, that the defendant should pay to the plaintiffs’ assignor one-third of all sums which had been awarded, and in the concluding part of the clause it is expressly provided “that the party of the first part [plaintiffs’ assignor] is not to receive any portion of awards hereafter made.” By this language, the defendant became liable to pay over one-third of all awards then made, but she did not become liable to pay over any part of awards thereafter made. The defendant paid the third-part of the award made before the execution of the contract, which terminated her liability under it. In the absence of an agreement to the contrary, the damages caused by closing the road belonged to the owner of the fee of the land at the date when the road was closed, which was March 3, 1868. King v. City of New York, 102 N. Y. 171, 6 N. E. Rep. 395. Who owned the fee at this date does not appear; but had it been shown that the plaintiffs’ assignor then owned one-third of it, or that she had received an assignment of an interest in the damages from the owner of the fee, the plaintiffs would not have been entitled to recover, because no such cause of action is alleged in the complaint, and for the further reason that, under the evidence contained in the record, the statute of limitations had run against a recovery on that ground. The judgment should be reversed, and a new trial granted, with costs to the appellant, to abide the event.  