
    Dietrich W. Wehrenberg, Respondent, v. Louis Seiferd and Charles Seiferd, Appellants.
    First Department,
    April 10, 1908.
    Deed. — reservation — damage by railroad structure.
    A provision in a deed reserving to the grantor all rights, damages and claims against a railroad for the erection and maintenance of any structure, raised way or railroad track opposite the premises conveyed is not broad enough to include rental damage accruing after plaintiff parted with title.
    Where the grantees have recovered fee and rental damage from the railroad they are entitled to the rental damage suffered after they became owners of the premises and should also he credited with all payments made in good faith to their attorneys in prosecuting the action against the railroad.
    A reservation clause not ambiguous cannot be explained by parol.
    Latjghlin and Ikgraham, JJ., dissented, with opinion.
    Appeal by the defendants, Louis Seiferd and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d day of December, 1907, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      Edwin Louis Garvin, for the appellants.
    
      Edward W. S. Johnston, for the respondent.
   Houghton, J.:

The plaintiff was the owner of premises abutting on Park avenue in the city of Hew York at the time the Hew York Central and the Harlem railways began the elevation and enlargement of their viaduct in that avenue. A temporary structure had been erected and put in use, and the plans for the permanent structure were known and the work was in progress on April 30, 1896, when the plaintiff conveyed the premises to the defendants with a reservation reading as follows: The, party of the first part hereto nevertheless expressly reserves to himself and excepts from the conveyance, any and all rights of actions, damages and claims against the Hew York Central and Hudson Eiver Eailroad Company and any other persons pr corporations whatsoever for the erection, construction, raaintenance or use of any structure, or raised way, or railroad track on Park avenue opposite the premises herein conveyed.”

After the defendants had acquired title and on the 24th day of August, 1897, they brought action against the railway companies and recovered $4,000 fee damage and $1,000 rental damage, which amounts, after various appeals, were paid to them and their attorneys with interest.

Thereupon this plaintiff brought this action to impound the moneys so recovered by defendants, on the theory that the recovery inured to his benefit under the reservation in his deed, and the court has awarded to him not only the fee damage recovered but the rental damage as well, less certain payments made by them to their attorneys. We are of opinion that the reservation is not broad enough in its terms to include rental damage accruing after plaintiff had parted with title.

When plaintiff made his conveyance with its reservation the temporary structure was in. place and was being used. The permanent structure was under way and it was known what it would be when completed and how it would be used, and that its maintenance and use would impair easements appurtenant to the property. Its selling price must necessarily have been affected unfavorably. The seller presumptively realized that he must take less for his property because of the permanent damage to it, and the buyers must have realized when their grantor made his reservation that he was endeavoring to recoup his loss in price by retaining to himself the damages which the property had suffered. The permanent damage to the salable value of the property had been done when the plaintiff sold it. After he had parted with title it was of no concern to him whether his grantees received a large or small rental for the property. In the absence of clear and express language, therefore, it is not to be presumed that the reservation covered rental damages accruing after .defendants became owners of the property.

In Western Union Telegraph Company v. Shepard (169 N. Y. 170) the reservation was of all claim or right of action for any and all injury or damage, “past, present or future.” And in Freund v. Biel (114 App. Div. 400) the grantor attempted to reserve to himself the easements impaired by the railway company and to retain the right to release the company from all damage, past and future, by reason of their impairment. The grantee, disregarding this reservation, himself released for a lump sum, which this court determined he held for the benefit of his grantor, irrespective of the impossibility of reserving the easement out of the fee, interpreting the reservation as a general one of all damage, past and future. The reservation considered in Pegram v. Elevated R. R. Co. (147 N. Y. 135) was of “ all damages and claims for damages now or hereafter caused said property or the present and future owners thereof; ” and that in McKenna v. Brooklyn Union El. R. R. Co. (184 N. Y. 391), the effect of which was not passed upon, was much broader than the reservation now under consideration, and more nearly like the one in the Freund case, above referred to.

It is true that in the present case “ any and all rights of actions, damages and claims ” for the erection and maintenance of the structure are reserved, but in view of the fact that the only damage which plaintiff had suffered was that which had accrued to his property at the time he made his conveyance, we think the reservation cannot be said to include rental damage sustained after he had parted with his title.

If the defendants had recovered any rental damage accruing before they received their deed, quite another question would be presented, and very likely plaintiff would be entitled to the amount which they had received. They did not recover any rental damage, however, prior to the time they took title, and only such as was found to have been suffered after they became owners of the property. In that recovery the plaintiff had no interest, and the judgment must be modified in that respect.

We think also, the defendants were entitled to credit for all they paid their attorneys in prosecuting the action and such sums as they contributed towards employing counsel in the. United States Supreme Court. Such payments and disbursements appear to have been made in good faith. The contract to allow the attorneys one-third of the recovery and disbursements was not an unreasonable one, nor was it improper to add interest to the amount awarded before division. The interest followed the judgment and together they formed at the end of the litigation the total recovery had. The amount finally paid was properly treated as the recovery in the action, and one-third of that amounts practically to the same sum the attorneys charged computed by taking one-third of the $5,000 and adding interest to it.

In the action which the plaintiff himself instituted he agreed to pay the same attorneys one-half of the recovery, and he cannot complain of the lesser amount which the defendants in good faith paid to secure the judgment which inured to his benefit. Nor can the plaintiff find fault that the defendants recovered no rental damage accruing to the premises before they received their conveyance and while he himself held title. He reserved those damages to himself as well as the fee damage, and even if the defendants had any right at all to recover them they were under no obligation to do so.

We have examined the points urged by the defendants and we find no errors calling for a reversal of the judgment. The reservation clause was not ambiguous and it was not open to the parol explanation sought to be given. There was no allegation that it was inserted in the deed by fraud or mistake, or mistake on one side and fraud on the other. It was complete in itself and oral testimony to change its terms or show the intention of the parties other than as expressed in the instrument was improper and was properly excluded by the court.

The judgment should be modified by deducting therefrom such part of the rental damage as was allowed, and also such disbursements to attorneys and in the United States court proceeding as pertained to the recovery of fee damages and were disallowed, and as so modified should be affirmed, without costs to either party.

Patterson, P. J., and Scott, J., concurred; Ingraham and Laughlin, JJ\, dissented.

Laughlin, J. (dissenting):

I dissent from so much of the decision of this court as eliminates from the recovery by the plaintiff the award for damages to the rental value of the property between the date of the conveyance • and the date of the decree. If, prior to the conveyance, rental damages had been sustained, against which the Statute of Limitations had not run, a cause of action therefor at law was vested in the grantor which remained in him for the trespass upon his easements down to the date of the conveyance. (Pegram v. Elevated, R. R. Co., 147 N. Y. 135.) This canse of action, if any, was not assigned to the grantee. As I view the reservation of damages contained in the deed, the grantor, in effect, conveyed the premises for the consideration specified precisely the same, so far as the rights of the grantee were concerned, as if immediately prior to executing the deed he had released to the railroad company all claims for damages to the easements. It was evidently the intention of the parties that all right to damages should be reserved by the grantor precisely the same as if those damages should ultimately be fixed as of the date of the conveyance. The fee and rental damages recovered together in effect constitute the damages to the fee on the date of the conveyance. Owing to the fact that it was necessary to bring the action and that time elapsed between the date of the conveyance and the date of the decree, the damages were not all awarded in form as fee damages, but as rental and fee damages, the former being for the trespass to the date of the decree, and the latter being the damages for all future time after the date of the decree, which are ascertained by determining the value of the land with and without the injury to the easements.

The Court of Appeals, in the opinion of Regram v. Elevated R. R. Co. (supra), expressly say, in refusing to award rental and fee damages to the grantor for the period subsequent to the date of the conveyance, on account of the fact that the right of action therefor had passed to the grantee who was not a party to the suit, that if the reservation was to be operative at all, the grantee became, as the holder of the legal title, a trustee for the plaintiffs with respect to any damages which might be recovered of the defendants, for the injury occasioned to the rental and fee value of the property through an action brought in his name, or wherein he was joined as a party.” In Western Union Telegraph Company v. Shepard (169 N. Y. 170), Avliere it was assumed that the grantor assigned to the grantee the right to bring the action for past damages in reserving both past and future damages, it was held that the grantee became a trustee for the grantor as to all such damages, both past rental damages, future rental damages and fee damages. This court, in Freund v. Biel (114 App. Div. 400), in reversing the trial court in holding that the grantor was not entitled to recover the amount received by the grantee in settlement for both rental and fee damages, held in effect that as to all of the damages the grantee became a trustee -for the grantor. There was the same authority for awarding to the plaintiff the damages to the rental value or for the trespass between the date of the conveyance and the date of the decree, as for the damages awarded in form as fee damages. If, as is about to be held by this court, the grantor cannot reserve the damages that may be recovered for the trespass which are awarded as for loss of rental value, then the grantee by bringing actions at law for trespass from time to time and not praying for an injunction and for a permanent award for damages to the fee in lieu thereof, may wholly defeat the rights of the grantor.

Ingraham, J., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.  