
    The Mayor, etc., v. Thomas Curran el al., as Executors, etc.
    
      (New York Common Pleas, Equity Term,
    
    
      Filed January 24, 1889.)
    
    1. Assessment—Land taken eor public use—Construction oe conveyances.
    Where in an action in the nature of an interpleader to determine the' rights of three separate claimants to a fund awarded as damages for the taking of certain lands for the opening and widening of a public avenue, the defendants Curran, Jacobs, and the executors of Dam each claim the-award, the latter on the ground of a reservation in the deed made by them-: to Jacobs; Jacobs on the ground that he was the owner of the land at tl.etime of the confirmation of the commissioners report, and Curran because-of a clause in the deed from Jacobs to him. The habendum clause to the.deed from the executors to Jacobs conveying the four lots in question contained the following: “Except so much of said land as has been taken by-public authority, if any has been taken, for the widening and straightening of Gerard avenue, and subject to any change to the line of said avenue proposed by the department of public works before the delivery of this, deed * * * and subject also to any assessment confirmed since January 6, 1888.” The deed was dated January 8, 1888. The defendant. Jacobs conveyed the same premises to Curran, the conveying clause being the same, but did not convey subject to the assessment. The deed was dated February 28, 1888. The commissioners report was made January . 28, 1888. Held, that the executors on the 3d day of January, 1888, were-possessed in fee of the four lots conveyed by them to Jacobs, unaffected, in any way by the proceedings which were pending, and that Jacobs took title to whole, and that the exception in the habendum clause was only for the purpose of protecting them from any claim which Jacobs might make-in case the commissioners report was confirmed without their knowledge, so that they could not give good title to the lots.
    2. Same—When conveyance passes claim no award.
    
      Held, that as Jacobs in the conveying clause of his deed to Curran, conveyed the entire property which he had received without any loss or diminution whatever, his intention in making the exception was the same as in. the case of Dam’s executors, and not for the purpose of reserving any right in the property to himself.
    3. Same—Apportionment oe award.
    
      Held, that as the damage was awarded in bulk to the eight lots formerly belonging to Dam, of which only four were conveyed to Curran, he is-entitled to only so much of the award as will compensate for the taking of a portion of the four lots, and that the remainder of the award should go to-whoever is ascertained to be the owner of the other four.
    4. Same—Assessment—How apportioned—Damages.
    
      Held, that as the assessment is a lien upon all the lots, after being equitably apportioned to each, lot should be first deducted from the damages, ascertained for each and the difference paid to the parties entitled to-receive it.
    
      R. H. Smith, assistant corporation counsel; John J. Macklin, for Curran; Edward Jacobs, in person; E. B. Amend, for Dam’s estate.
   Bookstayer, J.

—This is an action in the nature of am interpleader, brought by the mayor, etc., to determine the rights of three separate claimants to a fund of $2,188.88 on deposit with the comptroller, awarded as damages for the-taking of certain lands in the Twenty-third ward, designated on the damage map of the commissioners of estimate and assessment in the matter of opening and widening Girard avenue, by the number 25; and also to determine ■ who shall pay the assessment for benefit on the same property, amounting to $646.78.

The defendants, Curran, Jacobs and the executors of Dam, each claim the award; the latter on the ground of a reservation in the deed made by them to Jacobs; Jacobs on the ground that he was the owner of the land at the time of the confirmation of the commissioners’ report, and Curran on the ground that a clause in the deed from Jacobs to him gives the light of the award to the former.

Andrew J. Dam, in his life-time, was the owner of the property in controversy, together with other adjacent thereto. On the 5th of December, 1887, his executors entered into a contract to convey the four lots in question to the defendant Jacobs, and in pursuance thereof executed .•and delivered a deed dated January 3, 1888, which was recorded on the 16th of January, 1888.

This deed described the four lots as they were originally plotted on a map entitled “ Map of Inwood, towns of Morrisania and West Farms, county of Westchester and state of JSTew York,” dated June 1, 1868, and filed in the office of the register of Westchester county, and as they remained until the confirmation of the report hereafter referred to. The property abutted on Girard avenue and the habendum clause of the deed contained the following: “Except so much of said land as has been taken by public authority, if .any has been taken, for the widening and straightening of Girard avenue, and subject to any change in the line of said ■avenue proposed by the department of public parks before, the delivery of this deed, * * * and subject also to any •assessment confirmed since January 6, 1888.”

The defendant Jacobs, on the 27th of February, 1888, conveyed the four lots in question to the defendant Curran. The description of the property and the conveying clause was precisely the same in this deed as it had been in the deed from the executors of Dam to him, and sets forth that it was “the same premises heretofore conveyed to the party hereto of the first part (Jacobs), by John W. Murray and -Andrew J. Dam, executors, etc., by deed dated January 3, 1888, and recorded in the office of the register of the city and county of Hew York, January 16, 1888.”

, The habendum clause of this deed contained the same exception as that in the deed from the executors of Dam to Jacobs, but does not convey the land subject to the assessment. This deed was recorded on the 28th of February, 1888.

At the time the contract between the executors of Dam •and Jacobs was entered into, commissioners had been appointed, and there were proceedings pending for the widening and straightening of Girard avenue, The report of these commissioners was duly made to the supreme court,, and on the 23d day of January, 1888, their report was confirmed. It is, therefore, clear that on the 3d day of January,- 1888, the executors of Bam were possessed in fee of the whole of the four lots conveyed by them to Jacobs, unaffected in any way by the proceedings which were pending, and that Jacobs took title to the whole of the four lots. Fisher v. The Mayor, 67 N. Y., 73.

The exception in the habendum clause, I apprehend, was for no other purpose than to protect the executors from any claim which Jacobs might make against them in case the-report of the commissioners had been confirmed without, their knowledge, so that they could not give good title to-the whole of each lot.

_ It certainly cannot be construed to reserve to them the right to any damage award that might be made in favor of those lots after they had parted with their title thereto. At that time as far as the parties knew, no award had been made; and it was "uncertain whether the same would be-more or less than the amount assessed against the lots; and. indeed, it would seem they were under the impression the-assessment would be larger than the award, for they expressly provided in case an assessment should be made after the 6th of January, the land conveyed should be subject to-it, and this would seem to carry with it the right to the award, whatever it was.

I think therefore, that the claim of the executors of Dam cannot be sustained.

„ As between Jacobs and Curran, the question at first sight, presents greater difficulty. Jacobs was the owner of the property at the time that the report of the commissioners-was confirmed. Upon the confirmation of that report, that., part of the property, included in damage map No. 25, became vested in the mayor, aldermen and commonalty of the-city of New York, for the purposes for which it was condemned. Consolidation Act, § 990; Fisher v. The Mayor,., supra. Jacobs claims that the award then became due and payable to him; and he might have cited in support of his contention King v. The Mayor, 102 N. Y., 171, and Peters v. Carleton, 15 State Rep., 980.

The strongest way in which the argument in his behalf might be presented, I conceive to be that under the au thorities last quoted, the award for damages then became-due and payable, that they were in the nature of damages;, for a trespass or wrongful taking of property, and vested in him on the confirmation'of the commissioner’s report as a chose in action; that this chose in action was separate from the remaining real estate, and was not conveyed by the deed subsequently given, for that purported to be a conveyance of real property only, and did not convey the right of action personal to Jacobs, especially as that was in the nature of damages for a trespass.

The answer to this position is, I think, that Jacobs, by the exception in the habendum clause in his deed to Cur-ran, professed not to know whether the proceedings of the-commissioners had been confirmed or not, and I think the intention of the parties in making that exception was the-same as it had been in the case of the deed by Dam’s executors, and not for the purpose of reserving any right in the property to the grantor. This is made very apparent-from the fact that in the conveying clause of the deed,. Jacobs professed to convey the entire property which he-had received from the executors of Dam, without any less- or diminution whatever; that is to say, he professed to convey all of his rights in said ^property to Curran, just as he had received it from the executors of Dam.

This clause also conveys not only the hereditaments and appurtenances, as was in the case of King v. The Mayor (supra), but also “all * * * property, possession, claim and demand whatsoever, as well in law as in equity ” of Jacobs, to the property in question, with its appurtenances.

Now this deed was not effective to convey the property to Curran, as Jacobs had received it from the Dam executors, because the fee to a. portion of it had vested in the-city. There was, however, a claim or demand growing out of that property against the city to the owner of the lots, which £ think it was the intention of the parties to convey to Curran, otherwise it would follow that while Jacobs professsd to convey the entire property to Curran for a sum he-was willing to take for the whole, and while he concededly did not convey the whole, yet he would be twice paid for the part he dad not convey, once by Curran and once by the city, while Curran, who did not get what he bargained for, would be left remediless. This I conceive to be unjust.

It would seem to be more in accordance with equity to hold that Curran not having received all the land that. Jacobs professed to convey, is entitled to the damages, awarded for the taking of that part which he did not receive in lieu of the land.

In' my judgment, therefore, Curran is entitled to that part of the award arising from the taking of a portion off" the foaar lots in question.

But as damage No. 25 was awarded in bulk to the eight-lots formerly belonging to the Dam executors, of which. only four were conveyed to Curran, he obviously is entitled ■to so much, of the award only as was intended as compensation _ for the taking of a portion of these four lots. The remainder of such award should go to whoever is the owner of the other four. And as the quantity of land taken differs in respect to each lot, and there is nothing Ibefore me from which I can ascertain the varying amount taken from each, it is impossible for me to determine what part of the award belongs to the four lots in question.

The assessment for benefit is also laid upon the eight lots in bulk, and as the benefit may differ as to each lot, and I have no data from which I can determine that, it will be necessary to order a reference to ascertain who is entitled to the award of damages to the four lots adjoining the four in controversy, the amount of damage which should be ■awarded to each lot, and the portion of the assessment which should be imposed upon each lot separately.

Inasmuch as the assessment is now a lien upon all the lots in the hands of the,present owners, I think the assessment, after being equitably apportioned to each lot, should he first deducted from the damage ascertained for each, ■and the difference paid to the persons entitled to receive it as above indicated.  