
    Levi P. Rose, App’lt, v. David Hawley et al., Resp’ts. 
    
    
      (Court of Appeals,
    
    
      Filed February 27, 1894.)
    
    1. Former Adjudication—When not Bar.
    Where a party has been defeated in his action by reason of neglect to perform some preliminary act necessary to perfect the cause of action, the judgment is not a bar to another action begun after the cause of action has become perfected.
    2. Ejectment—Breach of Condition Subsequent.
    When a grantor seeks to re-enter for breach of a condition subsequent, he must establish something more than a technical encroachment through the action of strangers without the grantee’s permission.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made September 11, 1893, which affirmed a judgment in favor of defendant entered upon a decision of the court dismissing the complaint on trial at circuit.
    Tiie nature of the action and the facts, so far as material, are stated in the opinion.
    
      James M. Hunt, for app’lt; Theodore Fitch, for Hawley and others, resp’ts; Joseph M. Haly, for City of Yonkers, resp’t.
    
      
       Affirming 53 St. Rep. 403.
    
   O’Brien, J.

The questions presented by this appeal arise in an action by the plaintiff to recover the possession of real property, based upon allegations of the breach of conditions subsequent in a deed. On the 30th of December, 1848, the plaintiff conveyed to the municipal corporation then known as the town of Yonkers, a parcel of land described as containing eighty-four-hundredtlis of an acre. All the interest, rights and obligations conferred by this deed have since become vested in the city of Yonkers, one of the defendants in this action. The deed, after a description of the land intended to be conveyed by metes and bounds, contained the following provision : “This conveyance is upon this express condition, that the strip of land forming part of the premises above described, and being twelve feet and six inches in width, and extending all along said Academy street, shall forever hereafter be and remain a part of said Academy street, and shall never be used for any other purpose whatsoever. And also that all the residue of said land hereby conveyed shall forever hereafter be and remain public and open as a public highway, and that no house, building or other erection whatsoever, except a public monument, shall ever be built or erected or permitted upon the said land or upon any part thereof.’’

The complaint alleges in terms quite broad and general that there has been a breach of this condition, and particularly that the defendant Hawley' has been permitted by the city to erect a building on a part of the premises, and that it still continues to permit him to maintain the building and bold the land upon which it was erected and claim it as his own contrary to the conditions expressed in the grant.

At the trial the plaintiff attempted to show by proof that a building erected by the defendant Hawley or his grantors many years ago encroaches upon the land described in the deed. This building is north of the land conveyed and is something over sixty feet in length. It is claimed that the southerly wall stands upon a portion of the soil included within the bounds of the deed to the town to the extent of sixteen inches at one end of the building and two inches at the other end. The evidence on this point is quite complicated, obscure and conflicting, but it is conceded that unless there is some-insurmountable legal obstacle in the way of the plaintiff’s recovery in any event, that he was entitled to have the fact as to the existence and extent of the alleged encroachment determined by the jury. The other proof, in regard to the breach of the condition, shows the existence of an area south of the building above mentioned, under the surface of the ground, extending south from the building four feet, about eight feet deep. The southerly wall of this area is sixty-four feet in length, eight feet in height and about sixteen inches thick. All the surface inclosed in this area is within the bounds of the land conveyed by the deed. There is a stone stairway in the area leading below from the street, and over all the space is a sidewalk containing gratings and a door to the stairway which, when closed, constitutes no obstruction to persons passing upon the walk. This feature of the case simply shows a practice quite common in cities of using the space under the walk as a cellar or area for the storage of goods which, in no material respect, interferes with the use of the surface above as a public highway in the manner in which sidewalks are generally used. This was the situation with respect to the breach of the condition when this litigation began. The persistency of the litigants, and the varying results of the contest from, time to time, have added to the case some new complications which require some notice in order to obtain a clearer view of the questions presented now by the record.

In the year 1886 the plaintiff first brought his action to recover the land granted as above described, and in that year he obtained a judgment in his favor upon a trial by the court without a jury. This judgment was reversed by the general term upon the law and the facts and a new trial granted. Rose v. Hawley, 45 Hun, 592; 10 St. Rep., 360.

From this result the plaintiff appealed to this court, stipulating, as required by § 191 of the Code, that if the order was affirmed, judgment absolute should be rendered against him- The case was heard by the second division of this court, which affirmed the order appealed from and directed judgment absolute against the plaintiff. Rose v. Hawley, 118 N. Y., 502; 30 St. Rep., 6. This judgment was duly entered upon the remittitur in the court below. One of the reasons given in the opinion of the second division for the affirmance of the order was that no notice had been given to the city of the erection claimed as a breach of the conditions in the deed. The plaintiff began this action in the year 1890, and the complaint differs from that in the former action only in this respect. It contains allegations as to the commencement of the first action, the service of the complaint upon the city and the defendant Hawley, charging a breach of the conditions and stating the facts constituting the same, which were substantially identical with the facts contained in the record and already mentioned; that the city appeared and defended the action, and thus had notice of all the facts. The defendants, in addition to the defenses interposed in the first suit, have pleaded the former judgment as a bar. Before serving the answer, however, they demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and upon the further ground that upon its face the existence of the former judgment appeared which constituted a bar to this. The demurrer was sustained at the general and special terms, but overruled in this court. We then held that for the purpose of the question then before us, nothing could be known in regard to the former judgment except what was stated in the complaint, and that enough did not appear to sustain the demurrer. Rose v. Hawley, 133 N. Y., 315; 45 St. Rep., 119. In the answer the defendants have set forth fully all the facts in regard to the former action, and allege that the final judg-' ment was upon the merits and determined the question of encroachment and breach of the conditions. The trial of the issues was had before a jury and the plaintiff had a verdict, but the judgment was again reversed at the general term, upon the facts, • and a new trial granted. Rose v. Hawley, 69 Hun, 614; 53 St. Rep., 403. Upon the hew trial the same facts appeared, and upon the defendants’ motion the court dismissed the complaint upon the merits, to which ruling the plaintiff excepted. The judgment entered in favor of the defendants upon this decision has been affirmed in the court below, and the record containing all the proceedings is now before us for review. The former adjudication was not upon the merits in the sense which the rule requires in order to render the judgment a bar in another action. The plaintiff failed, so far as this question was involved, because notice of the alleged encroachment could not be imputed to the city. Since the judgment that element of the plaintiff’s case has been supplied, and hence the present action may be said to stand upon facts occurring after the first judgment, or at least after the commencement of that action. Where a party has been defeated in his action by reason of neglect to perform some preliminary act necessary to perfect the cause of action, such as the giving of notice or the like, the judgment is not a bar to another action begun after the cause of action has become perfected by the giving of notice or the performance of the requisite preliminary act, whatever it may be. A party who fails in an action upon a note or other promise for the reason that it was not due at the time the suit was commenced, may bring another action when the promise matures, and in such cases the former judgment, though rendered upon the merits, is no bar, and the same principle applies to the facts in this case. A subsequent action may be brought in such cases in a way to avoid the objection which proved fatal in the first. Marsh v. Masterton, 101 N. Y. 401-407; Spelman v. Terry, 74 id. 448 ; Shaw v. Broadbent, 129 id. 114; 41 St. Rep., 449 ; Bell v. Merrifield, 109 N. Y. 202 ; 14 St. Rep. 796.

But the plaintiff had stipulated in the former action that in case his appeal to this court was unsuccessful then judgment absolute might be rendered against him, and such judgment was rendered. The plaintiff, by this stipulation, waived his statutory right to another trial, which is given by the Code in actions for the recovery of real property, Roberts v. Baumgarten, 126 N. Y. 336 ; 37 St. Rep. 482, and whether he is bound by the former judgment absolutely and forever, even in a new action, brought upon new or additional facts, not existing when the former suit was commenced, may, perhaps, be still an open question, which in the view we are disposed to take of the case, is not now important to decide.

It is quite certain that the plaintiff cannot recover without showing a breach of the condition in some substantial and material respect. The important question, therefore, is whether such a breach was shown by the facts, assuming, as we must, that the jury would have found them as claimed by the plaintiff. .Tn respect to the area, it was held by the second division not to constitute a breach of the condition, as it was not an erection upon the land within its true purpose and meaning, nor was it rendered so by use. The purpose of the condition was to preserve the land conveyed for public purposes, and it was not violated by permitting the soil or space under the sidewalk to be used in such manner as is usual and common in cities and villages, as such use is in no sense inconsistent with that of the public for the purpose of a sidewalk for persons passing along the street.

The remaining question is whether the encroachment of the wall of the building at the north upon the land conveyed, sixteen inches at one end of a line sixty-four feet in length, and running down to two inches at the other end, constitutes, under the circumstances, such a breach of the condition as to forfeit the grant and entitle the plaintiff to re-enter. It may be said generally that such conditions in grants are not favored in the law. In the language of Chancellor Kent, “ Conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates; and the rigorous exaction of .them is a species summum jus, and in many cases hardly reconcilable with conscience.” 4 Kent’s Com. 130; Craig v. Wells, 11 N. Y. 315; Woodworth v. Paine, 74 id. 196. There are instances where such conditions were enforced for reasons .and upon grounds apparently technical, but, it is believed, that in such cases the ground upon which they were given" effect was within the intention of the parties when the condition was inserted, however slight the violation was. Plumb v. Tubbs, 41 N. Y. 442.

The intent and purpose of the condition in this case was to prevent the city from using the land conveyed for any other purpose than that mentioned in the grant; hence, it was prohibited from erecting upon it any house, building or other erection, except a public monument, and it cannot be said that the city itself has literally violated this condition, as it has not constructed or erected upon the land any building or structure whatever. But it is said that the condition was to the effect that the city should not permit any one else to make the forbidden erection, and as it has permitted Hawley to encroach upon it when building his wall several years ago, that the condition is broken and the estate forfeited. It was said when the demurrers were before us, that the forfeiture claimed is rested upon the conscious and willful sufferance of the city as amounting to a permission. The estate granted to the municipality cannot be forfeited by proof that a trespasser, without permission or authority from the city, express or implied, has appropriated to his own use a strip of land a few inches in width. The city cannot be said to permit the unlawful use until it has knowledge of the facts. Hawley claims that this strip of land belongs to him, and there has never been a time since the city has had the notice of plaintiff’s claim that.it could remove the building without proving, as against Hawley, that he was the trespasser. This litigation has been on foot for nearly eight' years in one form or another, and the only disputed question of fact has been the location of the true boundary line. The plaintiff claims that it is north of the south wall of the building, to the extent of sixteen inches at one en’d and two inches at the other. The defendants, Hawley and the city, take a different view of the matter, and both insist that the wall does not encroach on the land conveyed to the town in 1848. This dispute, involving a small strip of land, depends largely upon the memory of witnesses as to the location of old monuments, and upon the ability of engineers to reproduce old surveys from courses and distances. A result absolutely accurate is seldom attained in such cases. It appears that the building north of the land conveyed to the city was located by competent engineers about 1857, and it was then supposed by every one that the wall was on the true boundary line. The plaintiff was a member of the village board of trustees in 1864 and 1865. He saw these buildings erected first in 1857 and again in 1866, but not until twenty years after did he make any claim against the city that it had broken the conditions of the deed. The parties who owned and erected the buildings, now claimed to constitute the encroachment, are dead, and an accurate location of the northerly boundary line of the grant has become more difficult by the lapse of time. All these considerations are important upon the question whether, under the circumstances, the city has done or knowingly permitted anything which amounts to a breach of the condition within any fair and reasonable construction of its terms or the intention of the parties when the grant was made. The most that can be said is that there is an honest mistake between the plaintiff on the one hand, and the defendant on the other, as to the location of the line, and, assuming that the plaintiff’s theory as to the disputed fact must ultimately prevail, still, we think, there would • be no such substantial breach of the condition as to authorize a forfeiture of the grant and a re-entry by the grantor, as there was no permission to encroach within the meaning of the condition. If it be admitted that this small strip of land was included in the plaintiff’s grant to the municipality for public purposes, and that it has by an honest mistake been appropriated to a private purpose, in the manner disclosed by the record, the breach of the condition, if any, would be purely technical and of such an unsubstantial character as to warrant the conclusion that it was not within the purpose or intention of the parties to the conveyance. When a grantor of land seeks to re-enter for breach of a condition subsequent he should be required to establish something more than a technical encroachment through the action of strangers without the grantee’s permission. It is not enough to show in this way that the letter of the condition is violated, but it must appear that its true spirit and purposé have been willfully disregarded by the grantee. Upon the undisputed facts of the case we think that no such permission as is contemplated by the contract of the parties was shown, and, therefore, no substantial breach of the condition has been made out.

Our conclusion, therefore, is that the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  