
    Josephine L. Maybeck, Plaintiff, v. New York Municipal Railway Corporation and New York Consolidated Railroad Company, Defendants.
    (Supreme Court, Kings Special Term,
    August, 1918.)
    Consent—by owner of real property to construction of elevated railroad in front of premises is a “ conveyance ” and must be recorded in order to bind subsequent purchasers — injunctions — title — statutes—’pleading — Beal Property Law, § 290 — Code Civ. Pro. § 522.
    A consent executed by an owner of real property to the construction, maintenance and operation of an elevated railroad in front of her premises is a “ conveyance ” within the meaning of section 290 of the Real Property Law and must be recorded in order to bind subsequent bona fide purchasers of the property.
    The plaintiff in an action to enjoin the maintenance and operation of defendant’s railroad in front of her premises is not bound by a consent to such railroad executed by her predecessor in title but not recorded until her deed was recorded, she having paid a-valuable consideration for the premises and having no knowledge of such consent until long after she had acquired title.
    At the time plaintiff acquired title to her property there was on file in the proper county clerk’s office a certificate issued by the public service commission to the defendant containing a description of the route of the proposed railroad and providing, among other things, 'for the obtaining of the consents of the owners of one-half in value of the property bounded on the streets through which the railroad was to be constructed. Held, that in the absence of a statute making said certificate constructive notice of its contents it was insufficient to put plaintiff on inquiry as to whether her grantor had given such consent.
    The fact of such consent was purely a matter of defense, and allegations of the complaint anticipating such a defense, not being inconsistent with plaintiff’s claim on the trial that she was not bound by the consent because of the failure to record it nor with the evidence given in support of such claim, may be treated as surplusage.
    The consent having been pleaded as a part of the affirmative defense, the allegations thereof, no reply having been required, are deemed controverted under section 522 of the Code of Civil Procedure, and any evidence to show that the consent was not binding on plaintiff was available to her.
    While the allegations of the complaint, plaintiff’s conduct on the trial and her attempt to secure the revocation of the consent by signing a revocation and by procuring one from her grantor might be admissions that the consent was given, they did not, in the absence of facts constituting an estoppel, admit its validity or legal effect.
    An attempt to revoke an act cannot be regarded as an admission of its validity or binding effect.
    Action for an injunction.
    Stern & Gilleaudeau (Arthur J. Stern, of counsel), for plaintiff.
    George D. Yeomans (Charles L. Woody and Trabue Carswell, of counsel), for defendants.
   Benedict, J.

This is an action to enjoin the defendants from maintaining and operating an elevated railroad in Jamaica avenue, in the borough of Queens, in front of the premises of the plaintiff, or in the alternative for the damages sustained by the plaintiff by reason of the construction and operation of such railroad.

The principal ground of defense is that one Sophia C. E. Isler, who was plaintiff’s predecessor in the title, had, prior to the conveyance to plaintiff, executed a consent to the construction, maintenance and operation of the road, thereby waiving, as defendants urge, any claim for damages by reason of the invasion by defendants of the easements of light, air and access appurtenant to plaintiff’s premises. White v. Manhattan R. Co., 139 N. Y. 19.

This consent was acknowledged September 22, 1913, and was recorded in the Queens county clerk’s office on September 1, 1914. Plaintiff acquired title to the premises in question between the two dates last mentioned by deed from said Sophia C. E. Isler, dated January 27,1914, and recorded on the same day in the Queens county clerk’s office. It was shown by uncontradicted testimony that plaintiff paid a valuable consideration for the premises and that she did not know of the giving of the consent aforesaid until long after she had acquired title. The construction work of defendants in front of plaintiff’s premises did not begin until June, 1915, and work was not begun on the Jamaica avenue extension until January, 1915, about a year after plaintiff acquired her title.

The principal question in the case is, therefore, whether plaintiff is bound by this consent, in view of the fact that it was not recorded until after her deed was recorded, and that she was a purchaser for value and without notice of the consent.

I have not been referred to, nor have I been able to find, any statutory provision specially requiring or providing for the recording of the consents of property owners in the case of an elevated railroad, such as exists in the case of street surface railroads. Railroad Law, § 171. We are, therefore, thrown back upon the general statutory provisions relative to the recording of instruments affecting the title to real property (Real Prop. Law, art. 9) in the attempt to determine whether such a consent as is here under consideration must be recorded in order to bind a subsequent bona fide transferee of the abutting property. In section 290 of the Real Property Law the term “ conveyance ” is defined as ‘1 every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected,” including and excepting certain instruments not here involved. If, as has been held by the Court of Appeals, such a consent constitutes an abandonment to a certain extent of the easements of light, air and access (White v. Manhattan R. Co., supra; Heimberg v. Manhattan R. Co., 162 N. Y. 352), it would seem very clearly to be an instrument by which the title to real property may be affected, and hence to be a statutory conveyance which is required to be recorded. Upon the authorities the question does not seem to have been fully determined. In Ward v. Metropolitan El. R. Co., 152 N. Y. 39, the Court of Appeals -expressly refrained from deciding it, holding that ‘ ‘ as the defendants [when plaintiff acquired title] were in open, visible and notorious possession of all the rights acquired by or released to them and their possession was inconsistent with the title in plaintiff’s grantor to a full right to the easements of light, air and access afforded by the street, it operated as a notice to the plaintiff of the defendants ’ rights therein. ’ ’ In the subsequent case of Shaw v. New York El. R. R. Co., 187 N. Y. 186, where the plaintiff had acquired the property without notice of an unrecorded consent, and there was at that time no occupation of the street by the defendants, it was held that the plaintiff “ took her title unaffected and unimpaired by the act of her husband independent of any other consideration.” There were other grounds upon which the court held that .the consent did not constitute a defense to the action, to which other grounds the words “ independent of any other consideration ” were evidently intended to refer. So that it may be urged that the point here at issue was not finally decided by the Court of Appeals. However that may be, I think the decision was right. See, also Adee v. Nassau Electric R. R. Co., 65 App. Div. 529, 538; affd., 173 N. Y. 580.

I hold, therefore, that the consent here in question was a conveyance ” within the meaning of section 290 of the Real Property Law, and, therefore, an instrument necessary to be recorded in order to bind subsequent bona fide purchasers.

Defendants urge that the plaintiff was not a bona fide purchaser, because, although there was no actual occupation of the street in front of her premises by any construction work until long after she acquired title to her property, yet there was at that time a certificate issued by the public service commission to the defendant New York Municipal Railway Corporation, which was on file in the Queens county clerk’s office, as required by the Rapid Transit Act of 1891 (Laws of 1891, chap. 4, § 24, subd. 3), which certificate contained a description of the route of the proposed elevated railroad and provided, among other things, for the obtaining of the consents of the owners of one-half in value of the property bounded on the streets through which the railroad was to be constructed. This, it is claimed, was sufficient to put the plaintiff on inquiry as to whether her grantor had given a consent. I cannot accede to this contention. Plaintiff, before she purchased, had the title to the premises examined by one of the leading title insurance corporations, and nothing appeared on the report to advise her in any way of the existence of such certificate. Onr records are so indexed that it is practicable to search only against prior owners of record of the property to be acquired, and the Court of Appeals has held that such a search is all that is required. Thus in Tarbell v. West, 86 N. Y. 280, where the record title to partnership property stood in the name of one member of the firm, it was held that the recording of a mortgage given by another member of the firm of his interest was not notice to a bona fide purchaser from the holder of the record title, the court saying that the doctrine that the record of a conveyance is notice to subsequent purchasers is subject to the limitation, that it is notice only, to those claiming under the same grantor, or through.one who is the common source of title.” And this construction has since been incorporated in the statute by amendment. Real Property Law, § 291; Hatcher v. Brunt, 89 Misc. Rep. 530. It should be noted in passing that the consents of only the owners of one-half in value of the abutting real property were required, so that, for all the plaintiff knew, the certificate might have been fully complied with in this respect without the consent of plaintiff’s grantor. I have not been referred to any provision of statute making the certificate, when filed, constructive notice of its contents, and in the absence of such a statute it is not notice. Dunn v. City of New York, 205 N. Y. 342, 353.

It is also urged that plaintiff is not in a position to assert in this action that she is not bound by the consent on account of the failure to record it until after she acquired title, because her complaint is not framed on that theory, but upon the theory that a valid consent was given and subsequently revoked. The answer to this is that there was no occasion to say anything at all about the consent in the complaint. No relief is asked with respect thereto, as that it be set aside or declared void. The consent was purely matter of defense, and the allegations of paragraphs 12 to 15, inclusive, of the complaint, which appear to have been inserted in anticipation of such defense, may be treated as surplusage. These allegations of the complaint are in no way inconsistent with the claim now made by plaintiff that she was not bound by the consent because of the failure to record it, nor with the evidence given in support of such claim. The consent is set up in the answer as part of the affirmative defense, the allegations of which, no reply having been required, are deemed controverted by traverse or avoidance, as the case requires. Code Civ. Pro. § 522. Hence any evidence to show that the consent was not binding on the plaintiff was available to her. After the case was closed, it was reopened and both parties were afforded an opportunity, on ample notice, to offer any evidence on this question which they might desire. The proceedings upon such hearing are as .much a part of the trial as if the question had been raised and the evidence concerning the same had been given before the case was originally closed. Defendants did not claim surprise nor request any adjournment.

Defendants also urge that plaintiff has admitted the validity of the consent, both by the allegations of her complaint, by her conduct on the trial, and by her attempt to secure the revocation thereof, both by signing a revocation herself and by procuring a revocation from her grantor. These acts may admit the fact of the giving of the consent, but they do not, in the absence of facts constituting an estoppel, admit its validity or legal effect. The attempt to revoke an act cannot be regarded as an admission of its validity or binding-effect, since one may very properly seek to revoke an act as to the validity of which he is in doubt.

The conclusion thus reached, that the consent is not binding on the plaintiff, renders it unnecessary to consider the other questions of law raised on the trial, and it remains only to determine the amount of the plaintiff’s damages.

I have not had the benefit of a view to aid me in fixing the damages, because the counsel for the defendant have refused to consent that I should view the premises. I have therefore determined the question of damages on the evidence. I find a fee damage of $1,200, and a loss of rents from the date of the reconveyance of the premises to the plaintiff up to the date of the trial of $80.

Judgment accordingly.  