
    In the Matter of the Application of The Mayor, Aldermen, and Commonalty of the City of New York, Relative to Acquiring, Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Trinity Avenue (Although Not Yet Named by Proper Authority) from Westchester Avenue to East One Hundred and Sixty-sixth Street, as the Same Has Been Heretofore Laid Out and Designated as a First Class Street or Road, in the Twenty-third Ward of the City of New York. Bernard C. Murray, Appellant; William Langdon, as Executor, etc., of Charles Pitchie, Deceased, Respondent.
    First Department,
    December 7, 1906.
    Real property — eminent domain — when award on condemnation of street does not pass to grantee.
    When an owner's title to the street in front of his premises has been taken .by eminent domain, a right to the award to be made vests in him personally, and" ■ his subsequent conveyance of the premises does not transfer the award to the grantee unless specifically assigned in the dee'd.
    Appeal by Bernard C. Murray from an order of. the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1905, resettled by an order bearing date the 21st day of March,' 1906, and entered in' said clerk’s office, in so far as said order confirms that portion of the report of the commissioners of estimate and assessment in the above-entitled proceedings, which" awards damages to Charles Pitchie for the taking of certain lands for a street opening. , ,,
    
      Adolph G. Hottenroth [F. W. Hottenroth with him on the brief], for the. appellant.
    
      George W. Simpson [George H. Taylor, Jr., with him on the brief], for the respondent Langdon, as executor.
   Clarke, J.:

This is an appeal from part of an order of the Special Term confirming the final report of the commissioners of estimate and. assessment in street opening proceedings. There is hut one question involved, and that is the determination of the rival claims to an award for the damage to one parcel. The facts appear to be as follows :

One Charles A. Stadler was heretofore the owner of a large parcel. of land' situate in the twenty-third ward of the city of New York. He caused a map of the property divided into 155 building lots to be made and filed in the office of the register of the city and county of New York on the 20th day of June, 1887. Upon said map the lots were distinguished by lot numbers. On June 22, 1887, Stadler conveyed to Bernard 0. Murray, the appellant, lots 147, 148. and 149, which were located upon the westerly side of Trinity avenue, a street not then opened by public authority and upon both sides of which Stadler’s property extended. The deed conveyed by lot number upon said map and without description by metes and bounds. It is conceded, therefore, that under said deed the title was vested in Murray to the land in the street in front of said lots to the center line thereof, subject, of course, to its use as a street. On July 10, 1896, the title in the land in Trinity avenue vested in the city of New York by virtue of the street opening proceedings here under consideration. On March 18, 1897, Murray azjd his wife conveyed to Charles Pitchie by deed containing full' covenants and a general warranty, lots Hos. 147, 148 and 149’ by description according to lot numbers on the map heretofore alluded to and without metes and bounds, together with the appurtenances and all the estate and rights of the said parties of the first part in and to said premises. The description in the deed from Murray to Pitchie is identical with the description in the deed from. Stadler to Murray and, therefore, if the situation had been the same as at the time of the conveyance from Stadler to Murray, Pitchie would have acquired title to whatever' Stadler had conveyed to Murray, which would have included the land izz the street to the center line thereof. But the situation was not the same. When Murray conveyed to Pitchie he had lost the title to the land in the street which had become vested in the city of New York. The comznissioners fixed the damages to the three lots by the taking of the land by the city for a street at $600 and awarded the same to Pitchie who owned the lots at the time of the award, and the learned Special Term has confirmed their report.

The appellant claims that inasmuch' as' the title to the lots was vested in him at the time the title to the land in the street became vested in the city, that the right to be paid the award, for the bed of the street was a personal right to him which had not been trails^ ferred by his subsequent deed of the lots to Pitchie.

It seems to-me that the appellant’s claim is well founded. The road ceased to be private property and title vested in the city on the 10th day of July,.1896, when Murray was the owner of premises falten and was under the provisions of the statute entitled to all damages which might be awarded for injury done. The right • to. those damages at once accrued and, although they were not fixed and ascertained until after the conveyance by Murray to Pitchie, that fact does.not alter the character of the right as a personal one vestéd'in Murray at the taking of the road. When paid it relates back to the original debt which accrued at that time. That right remained his, unless it was transferred by the deed to Pitchie. It Was not in terms embraced in the deed and was a mere right of action not running with the land. The damages were,like those which follow a trespass or wrongful taking of property, although the wrong is made rightful by the legislative authority, and the damages are awarded as a compensation. (King v. Mayor, 102 N. Y. 172.).

■ The question as to the right of an award as between a mortgagee and the owner of. the equity has arisen in several cases,, and the rule seems to be well established that where a mortgage lias been given upon property prior to the taking of a portion thereof by the city, that if, upon a. foreclosure and sale after the taking by the city, the amount realized is insufficient to. meet the mortgage debt, the lien.of the mortgage would extend to and embrace so much of the damages as awarded as should be needed to make good the deficiency. As -stated in Utter v. Richmond (112 N. Y. 610): “When land is taken--for public use the damages awarded are to take-the place of the land in respect to all the rights and interests which were dependent upon and incident to . it.” In alluding to King v. Mayor (supra) the court said: “ There the right to an award had accrued and the land value been diminished before the conveyance was made under which the grantee claimed the damages, and we held that the land, already shorn of its easement, was the subject transferred, and the right to the award did not pass by the deed.”

In the case of Home Insurance Co. v. Smith (28 Hun, 296) there was a controversy with respect to the title to an award between parties claiming under a transfer of part of the award from the original owner of the land to whom the award had been made and the purchaser under a mortgage sale which had taken place after the confirmation of the report of the commissioners, and so after the title liad vested in the city. The sale brought enough to satisfy the mortgage. It was held that the title of the owner to the part of the mortgaged premises taken for the street having been divested by the confirmation of the report prior to the sale on the foreclosure judgment, the sale operated only upon the remaining land, and that the part of the land for which the award was made was as completely excluded by the proceedings from the mortgage as though it had never been incumbered by it, and that consequently the purchaser under the sale acquired no title in law or equity to the award; that under the circumstances the award belonged to the owners of the land taken. The doctrine of that case was approved in Gates v. He La Mare (142 N. Y. 307).

It seems to be settled that an award does not pass upon a sale and conveyance of the remaining land as a part of the estate conveyed or appurtenant to it, but will only pass when specially assigned or described in the conveyance.

The vesting in the city was by public act of public authorities taken in pursuance of law, of which the purchaser of adjacent lots who took subsequent thereto had notice, or must be presumed to have had notice, and the price paid by him for the lots must be presumed to have been fixed in consideration of the fact. Private property cannot be taken for public use without compensation. Immediately upon the taking of that property the right to the consideration is vested in the then owner.' There is nothing in the deed which assumes to convey that right of the owner, which in this case had existed for some eight months prior to the making of the deed, to receive the award for the damage to his property, and the commissioners erroneously awarded the sum in controversy to the executors of the subsequent purchaser instead of to the appellant. •

The only cases to which our attention has been called to the contrary'are certain cases which arose from a peculiar set, of circumstances in the city of Brooklyn, of which' the case of Magee v. City of Brooklyn (144 N. Y. 265) is an example. In that case the title, by act of the Legislature, had vested in the city, but for eighteen years no steps had been taken by the city in accordance-with the provisions.of the act, and in the meanwhile the property had been transferred time and time again by full.covenant warranty deeds, and when the award was finally made the then' owners of the property were the sole claimants thereto. Under those circumstances the court held that they were entitled to it, but in each case did so upon the ground that the case was sui g_eneris. Judge O'Brien, who wrote the opinion in the Magee case, in Patterson v. City of Binghamton (154 N. Y. 391), distinguished the Magee case upon the distinct ground that “ it belongs to a class of cases that this court has always regarded as sui generis. * * * These cases afford no authority for the contention that the plaintiff in this case was divested of the title to an award made to him before any judgment of foreclosure by a sale upon the judgment three months after the award had vested in. the plaintiff.”

The order appealed from should be reversed and the report returned to the commissioners, with instructions to make the award to the damage parcel under consideration to Bernard C. Murray, the appellant, with costs and disbursements of- this appéal.

Patterson, Ingraham, Laughlin and Soott, JJ., concurred.

Order reversed and report remitted to commissioners as stated in opinion. Order filed. 
      
       See Consol. Act (Laws of 1882, chap. 410), chap. 16, tit. 5, as amd-.' by Laws of 1893, chap. 660, and Laws of 1895, chap. 449.— [Rep.
     