
    William Nugent, as Executor, Plaintiff, v. The City of New York et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1908.)
    Highways — Change of grade — Right to compensation, etc.— When right accrues.
    Principal and agent — Rights and liabilities of principal as to third persons — Ratification — Sufficiency.
    Frauds, Statute of — Real property and estates and interests therein — Interests in land in general — Claim for damages for change of grade of street.
    Damages by reason of the change of grade of a street in the borough of Brooklyn accrue at the time of the actual physical change, and the award therefor must be given to the owner at that time of the premises affected.
    Although the authority of a husband who acts for his wife in negotiating the sale of real estate will he presumed from her adoption of his acts in signing a contract and executing a deed and closing title pursuant thereto, such presumption will not extend to his authority to agree to transfer a claim for damages already accrued by reason of the change of grade of an adjacent street, where neither the contract for sale nor the deed contains any provision relating thereto.
    Whether an assignment of an award for damages for the change of grade of a street falls within the provisions of the Statute of-Frauds and is thereby required to be in writing, quiere.
    
    
      Action to recover the amount awarded for the change of the grade of a street in the city of New York, borough of Brooklyn.
    Maurice Deiches, for plaintiff.
    F. K. Pendleton, Corporation Counsel, for defendant City of New York.
    Wm. A. Haggerty, for defendants Lawrence.
   McCall, J.

In the year 1904, and prior to the fourth day of October therein, the decedent, Ellen C. Nugent, was the owner in fee of certain premises situate on the southerly side of Fifty-second street, about 180 feet eastwardly of the comer formed by the intersection of said southerly side of Fifty-second street and the easterly, side of Eighth avenue, in the borough of Brooklyn, in the city of New York. While she was still said owner an actual physical change in the grade of Fifty-second street was made in the line of some projected improvements instituted by the city, and, as a result of said change and improvement, awards for damages incurred and assessments for improvements made ensued. It is well settled now in the law that damages by reason of change of grade accrue at the time of the actual physical change, and necessarily such award as is made must he given to the owner at the time of such actual change. Matter of Mayor, 80 App. Div. 622; People ex rel. Missionary Socy. v. Coler, 60 id. 77. Mrs. Nugent being the owner of the fee at the time of the actual physical change, the award for the damages was, therefore, properly made to her in the first instance, but whether the payment of the same to her or to her legal representatives (she now'being dead) shall be made is to be determined by the settlement of the other issues raised in this litigation, to wit, whether or not she in her lifetime assigned all her right, title and interest in same to the defendants Lawrence. On October 4, 1904, Mrs. NTugent contracted to sell these premises to the Misses Lawrence, and the record reveals negotiations covering a period of several days prior thereto, all of same conducted, not with Mrs. Nugent, the owner, but with Mr. Nugent, her husband. Any question of the capacity of Mr. Nugent to act for his wife in so far as the sale and transfer of the realty are concerned is removed by her subsequent acts of ratification and the signing and execution of the deed and closing of title. During these several interviews antedating the signing of the contract and the execution of deed the defendants and their witnesses assert that repeatedly Mr. Nugent stated that the award to be made for the damages sustained by the change of grade would pass with the title or would go to the purchaser of the property, and it is upon this slender basis of an oral proposition, alleged to have been entered into with a supposed agent, that the claim of these defendants to their award hinges. What are the facts shown by this record on the part of defendants Lawrence ? The alleged controlling feature of this proposed sale, the sine qua non that operated to bring about the purchase, was the fact that this proposed award was to be transferred to the purchaser. It bridged the abyss that existed between the asking price and that which defendants offered, and yet, when the contract for the sale is drawn up and signed, not a line in reference to same is found therein; when the deed is given that passes the title, not a word therein that as much as suggests that there is to be a transfer of this award, when in either instrument a definite and clear statement of transfer of the claim would have fixed and established the rights of the parties beyond peradventure and would not leave courts in settlement of these questions after the death of one of the principals, as in the case at bar, groping and conjecturing on verbal assertions stoutly denied as to where the truth rests. It is clear, therefore, that neither the contract of sale nor the deed of transfer of title passed this claim (Harris v. Kingston Realty Co., 116 App. Div. 104), and the claim for this award was a mere chose in action that must have passed, if at all, by a separate and independent act apart from either the instrument that provided for the sale of or that which transferred the title to the realty. No negotiations of any kind were had with Mrs. Nugent, the owner. In fact she never appeared in any way at all till the day of closing of the title, and all arrangements were made with and through her husband. She is now dead, and while I have concluded that his agency in so far as the sale of the realty was concerned was fully satisfied by her affirmative act of executing the deed, there is nothing before me to warrant the conclusion that he had the authority, though he essayed so to do (which is far from established by the proof), to assign the claim to this award. I am not overlooking the testimony of Major Calhoun as to conversations had with the decedent, hut, in the face of the denials of the plaintiff, the assertion of decedent in a proceeding instituted in her lifetime that no such assignment as is alleged was made and of the record in full, the proof falls far short of satisfactorily sustaining the burden that should he exacted in cases of this character to substantially prove the agency or the transfer. On the question of the said assignment falling within the provisions of the Statute of Frauds,, and, therefore, necessarily compelling the same to he in writing; this undoubtedly would have proven available had the statute been pleaded, but' it was not, and1 the objections on that score are of no force. The conclusion, therefore, is that an assignment from the decedent of her right to the award was not established, and the judgment must he rendered for the plaintiff.

Judgment for plaintiff.  