
    Wright E. Post, Pl’ff, v. John W. Hazlett, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 13, 1891.)
    
    Vendob and fubchaseb—Marketable title—Revebsionaby intebest of ADJOINING OWNEB IN CLOSED STBEET.
    Plaintiff’s grantor held under a deed which bounded the land conveyed by the side of the street. In proceedings taken under Laws 1869, ch. 890, to straighten the street, no award was made to plaintiff's grantor, the commissioners being under the erroneous impression that he had the reversionary interest in the road bed. Held, that the commissioners in such proceeding had no right to determine absolutely the ownership of the reversionary interest in the road bed; that plaintiff’s grantor had no such reversionary interest under his deed and acquired none under said proceedings, and that plaintiff could not convey a marketable title to the land formerly forming a portion of such road bed.
    Voluntary submission of a controversy under § 1279 of the Code.
    
      Lang don War d, for pl’ff; Albert J. Sire, for def’fi
   Brady, J.

The question to be determined is whether a deed from the plaintiff of the two houses and lots known as Hos. 216 and 218 West Fifty-third street, would convey a good and marketable title.

The land in question was formerly a part of the bed or roadway of the Bloomingdale road, which it is conceded was not conveyed to the plaintiff’s grantor by reason of the limited effect of the grant, according to the adjudications of this state on the subject of boundaries, but he claims to have acquired a good title by virtue of certain proceedings had under the act embraced in chapter 890 of the Laws of 1869, entitled “An act to alter the map or plan of the city of New York, and carry the alterations into effect.” In such proceedings, unfortunately for him, the commissioners have no power to determine authoritatively who is the owner of the reversionary interest in the roadbed, however conclusive their confirmed report may be as to all other features of the proceedings, and the act itself contains provisions indicating a legislative knowledge of this rule duly applied therein, although it would make no difference whether it did or not.

The commissioners assumed that Mr. Livermore, being the abutting owner, was entitled to the reversionary right to the bed of the Bloomingdale road, but which, as we have seen, by concession, was an erroneous view. The act, however, provides for the acquisition of the reversionary interest in the bed of the road by the abutting owner where he is not by right entitled to it. It declares as follows:

§ 2. If any part or parts of Broadway shall be closed under the provisions of this act, any owner of land now fronting on Broadway, abutting on any part so closed, may acquire an exclusive right, title and interest of, in and to so much of any part so closed as lies between the present front line of the land owned by him and the line of Broadway as it may be so as aforesaid located and established, and two lines respectively drawn at right angles to a line parallel with the Seventh avenue, from the northerly and southerly ends of the present front lines of the land owned by him, upon paying to the chamberlain of the city of New York, for the mayor, aldermen and commonalty of the said city, the amount of any award by the said commissioners of estimate and assessment, for the discontinuance of the public use of the land such owner is so entitled to acquire and also paying to the said chamberlain, for the parties entitled thereto, the amount of any award by the said commissioners for the reversionary interest in such lands or any part thereof; and no person shall acquire or be vested with any right, title or interest or to any such land until he shall have actually paid to the said chamberlain the amount of such awards, with interest thereon from the day of the confirmation of the report of the said commissioners ; but no award shall be made for the reversionary interest in case the parties having such interest shall be entitled to acquire the land.

No award however was made by the commissioners for the reversionary interest in accordance with this statute, for the reason that it was supposed, as already suggested, and was so determined by the commissioners, that Mr. Livermore having the reversionary interest was not entitled to any award. The importance of the award to the owner of the reversionary interest and the protection granted him is manifest from the provision of the act, section second, to the effect that the public use of any piece of land for which an award is made for the reversionary interest shall not be discontinued, nor shall the part of the street- be held to be closed until the party entitled to the award for the reversionary interest shall, by accepting such award, release his interest in the land for which the award is made. It may be appropriately observed here that perhaps as to the locus in quo the street has not according to these provisions been closed and its character as a public highway still exists.

Although the consideration of this case on the briefs has taken a wide range, the well established legal proposition that the commissioners had not the right to determine absolutely the ownership of the reversionary interest, and it appearing that the plaintiff was not the owner of it and, therefore, had no title to it, requires the conclusion that the defendant is entitled to judgment. The plaintiff could not convey to him a good and marketable interest. He neither acquired one by his deed nor by compliance with the statute, because no award was made to the owners of the reversionary interest in the roadbed, assuming that in a proceeding like that suggested such a determination would not be subject to objections founded upon provisions of the constitution of the state.

. The conclusion thus expressed is one very much to be regretted, for the reason that the deed from Taylor to Livermore was-executed many years ago, namely, in 1863, and, so far as appears from the statement of facts, neither he nor his heirs nor legal representatives have made any claim growing out of the changes 'which were accomplished by the provisions of the act of 1869, already mentioned. There is a seeming injustice in depriving Taylor’s grantee, and the plaintiff who holds under the latter, of the benefit and advantage of the roadbed, the rule as to the conveyance of which has been the subject of many conflicting decisions, White's Bank of Buffalo v. Nichols, 64 N. Y., 71, and which in this state seems to have been established by invoking the intention of the parties as modified by the terms of the deed as to boundaries, so that the question as to the boundary is in all cases one of the interpretations of the deed or grant, White's Bank of Buffalo v. Nichols, supra; the intent to transfer the bed of the street, in other words, being an important factor in the claim and chain of title, whereas, with great deference, the rule should have been just the converse,namely that the roadbed in front of premises conveyed should be embraced by the grant as part and parcel of it unless, as said in some of the cases, the intention ipsis verbis to withhold it from the transfer was expressed.

It may be said, as a rule of human action, that few grantors, if any, upon the execution of a conveyance, intend really and actually to withhold anything appurtenant to the land described, unless they so express themselves in the grant by which the transfer is made, which is very rarely, .if ever, done, the intention and the act of granting being to convey the land and all its immunities ; and the rules to the contrary seem to spring from technical interpretations of the language employed to describe the land conveyed, resting on technical refinements in which the intention and design of the grantee to acquire all advantages and by his purchase to get the whole estate has received no individual consideration whatever; indeed, the interpretation has generally resulted to the benefit of the grantor.

Por these reasons the defendant is entitled to judgment, because, as already suggested, the plaintiff is not able to convey a good and marketable title under the contract of sale and purchase. Ordered accordingly.

Van Brunt, P. J., and Daniels, J., concur.  