
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title, etc., for the Opening and Extending of Edgewater Road, etc., from Garrison Avenue (Mohawk Avenue) to Seneca Avenue, in the Twenty-third Ward, Borough of the Bronx, City of New York. Hunt’s Point Realty Company, Respondent.
    First Department,
    May 13, 1910.
    Eminent domain — street opening, city of New York — condemnation of fee burdened by private easements — nominal award — agreement to convey lands abutting on proposed street prior to acquisition of title by city — equitable conversion.
    When lands already burdened with private easements are condemned on a street opening, the value to the owner is less than it would be-if the lands were unincumbered, and he is only entitled to a nominal award.
    Where an owner, in order to avoid the effect of the rule aforesaid, delayed filing a map showing a street Which the city proposed to condemn, and, after having entered into contracts to sell lots bordering on the proposed street, induced the city to take title at an early date and delayed conveying to the purchasers until the city acquired title, only a nominal award should be made for the fee of the street taken.
    This, because the contract of sale made prior to the time the title vested in the city entitled the vendees not only to the lands bought, but, on the principle of equitable conversion, to easements in the proposed streets which the vendor continued to hold in trust for his vendees.
    On a contract for the purchase and sale of lands the vendee becomes the equitable owner, the vendor continuing to hold legal title merely as security for the payment of the purchase money.
    It is immaterial that the vendor, when inducing the city to take title at an early date, promised to pay the assessment levied on the lands • taken, as such agreement merely enhanced the purchase price of the lands.
    Ingraham, P. J., dissented, with memorandum.
    Appeal by the petitioner, The City of New York, 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 1st day of March, 1910, denying the petitioner’s motion to confirm the report of commissioners of estimate and .the report of the commissioner of assessment herein and referring said reports to new commissioners therein named.
    
      
      Joel J. Squier, for the appellant.- .
    
      Francis P. O'Connor, for the respondent.
   Scott, J:

The question presented by this appeal is whether or not the commissioners of estimate and assessment were justified in valuing the property of the Hunt’s Point Realty Company, lying in the bed of Edgewater avenue, and taken in this proceeding, as land incumbered with private easements for light, air and access in favor of adjacent property fronting on the road. The respondent claims that it is entitled to be awarded the full value of the land, as if unincumbered by any easement, and available to its owner for any use whatever. There is no question of dedication to the public, and no such dedication is claimed to have been made. The sole question is whether the street when taken had been burdened by private easements, for it is manifest that if so burdened its value to the owner would be quite different and much less than its value would have been if wholly unincumbered. (Matter of One Hundred & Sixteenth Street, 1 App. Div. 436; Matter of City of New York, 196 N. Y. 286.) The circumstances under which this question arises are as follows: The Hunt’s Point Realty Company owned a tract of land comprising the property to be acquired in this proceeding for Edgewater road, and all the lots on both sides of the road and abutting thereon. The Edgewater road was a street duly laid out on the city map, and proceedings to acquire it were initiated on February 8, 1907, by the adoption by the board of estimate and apportionment of the customary resolution directing the. corporation counsel to take the necessary steps. Commissioners of estimate and assessment were appointed by order dated June 29, 1907. While these proceedings were pending, and in contemplation of a proposed sale- by the realty company of its property, the said company opened negotiations with the city of New York, which resulted on May 1, 1908, in an agreement that, if- the. city of New York would take the necessary steps to vest title in the city of New York prior to June 12, 1908, the company would, (1) waive interest in any award that might be made for the taking of the property; (2) pay the assessments levied upon each and every lot owned- by the company at the time of the agreement, regardless of whether or not the lands were owned by it at the time the assessments became liens, and (3) pay eighty-six and two-thirds per cent of the commissioners’ fees and of the expenses and disbursements of the pending condemnation proceeding, excepting the amount of the awards made for the taking of lands required to be taken by the city of New York. A bond was to be given by the company to insure the performance of this contract. It is not very apparent how the city of New York gained any advantage from this agreement. It saved interest on the awards from the time of vesting title until the date of the confirmation of the commissioners’ report, but the early vesting of title was to be for the benefit of the company. For the rest it was of no consequence to the city who paid the assessments, whether the realty'company or its grantees, and the agreement to pay eighty-six and two-thirds -per cent of the fees and expenses, excluding the awards, does not appear to be.much of a concession since ordinarily in street-opening proceedings, one hundred per cent of both the awards and expenses are assessed back upon the benefited property. The. reason for inducing the city to enter into this agreement is frankly conceded by the realty company. It desired to sell -its land while the proceedings were pending, but was “ familiar with the law of this State to the effect that completed sales [of property] made by means of a map showing lots as fronting upon proposed streets, one of which was the very street then in process of acquirement by the city of New York, would, if said sale was made and the deed given prior to the 'vesting of title in the city of New York, create private easements in favor of the grantees, which private easements, in turn, would reduce the award to be made for the portion of the property to be acquired for said Edgewater Road from a substantial to a nominal amount.” The object in having an early date fixed for vesting title in the city was that the company might so frame its contracts- for the sale of the property that the sales would not be completed until after title had vested in the city, so that at the date of vesting of title the company would be the owner of record of both the street and the lots abutting thereon. In fulfillment of the above-mentioned contract the board of estimate and'apportionment adopted the requisite resolution to vest title in the city on June 2, 1908. Up to this time the realty company had filed no map of its property showing the proposed streets which subdivided it. It had, however, caused such a 'map to be prepared, and on May 12, 1908, held an auction sale of its property or a part thereof. This sale was advertised and made with reference to a map, which was widely advertised and dis-. tributed and displayed at the sale, upon which the company’s property was shown as subdivided by streets, and with the property abutting on said streets laid out in numbered lots. On this map Edgewater road was depicted, and of the lots sold a number were among those shown on the map as fronting on Edgewater road. The terms of sale, which constituted the contract of sale between the company and the purchasers,- fixed June 12, 1908, as the date upon which the deeds of the property were to be delivered and' possession of 'the property taken over by the vendees. This was ten days • after title to the property had vested. in the city. ' The respondent contends that by reason of the foregoing facts it has avoided the operation of the rule which would have entitled it to-only nominal awards if title to the city had vested after title to the abutting lots had passed to the purchasers. In so contending, however, the respondent gives more heed to the letter of the rule than to its reason, and fails -to give due weight to the nature and effect of a contract for the sale of real estate.' The question we have to consider is as to the rights of the purchasers of lots from the realty company, who held contracts of purchase on the day that title to the street passed to the city. One of the commonest and best-recognized methods of creating private easements over projected streets is to sell lots abutting thereon by reference to a'map showing the streets as projected (Lord v. Atkins, 138 N. Y. 184), and as between the vendor and the vendee who had purchased with knowledge of such a map and in reliance upon it, it is quite immaterial whether the map has ever been so filed as to have become a public record. When, therefore, the purchasers at the auction sale bought the lots abutting upon Edgewater road, they bought not only -the land lying within the boundaries of their lot, but also an appurtenant right to the use of the land depicted on the map as Edgewater road for’street purposes, arid whatever rights they acquired-by their contract of purchase applied as well.to the easemérits in Edgewater road as to the specific lot bought. Hence, on the date that title to Edgewater road vested in the city, each purchaser of a lot fronting hereon held a contract from the realty company for the conveyance of a private easement over the street, and that contract it could have enforced in equity if the company had retained title to the street instead of parting with it to the city. It is thoroughly well. settled and will not be disputed that in the case of a contract for the purchase and sale of real property the vendee becomes the equitable owner of the property, the vendor continuing to hold the legal title merely as security for the payment of the purchase money, and hence in the case of the death of such a vendee before actual delivery of the deed the interest of the vendee is treated as real estate and descends to his heirs or is devisable as real estate. In such a case the interest of the parties in the property is changed by the contract of sale. (Clarke v. Long Island Realty Company, 126 App. Div. 282; Gates v. De La Mare, 142 N. Y. 307; Williams v. Haddock, 145 id. 144; Hathaway v. Payne, 34 id. 92; Sewell v. Underhill, 127 App. Div. 92.) It is no answer to say that if the street had not been opened the purchaser might have avoided his purchase, for he was not bound to do so but was entitled to a conveyance of what he had bought, to wit, a lot with an appurtenant easement for the use of the street. No in justice is done to the original owner by treating this street as incumbered with private easements for the benefit of the abutting lots, for as pointed out in Matter of City of New York, West 177th Street (135 App. Div. 520), this existence or promised existence of the street is what made the abutting property valuable, and the value of that part of the plot appropriated to street purposes may be presumed to be included in and represented by the enhanced price procured for the abutting lots, because they are sold as abutting upon a street. It is of no moment that’ the realty company sold the property.under an agreement that it would pay the assessment to be levied thereon, for the only effect of such an agreement would be to enhance the amount bid, so that the amount to be paid for assessments would be repaid in the price paid for the property. Our conclusion is that the commissioners committed no error in estimating the value of the land taken on Edgewater road as incumbered with private easement.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion for the confirmation of the commissioners’ report granted, with ten dollars costs.

McLaughlin, Clarke and Dowling, JJ., concurred ; Ingraham, P. J., dissented.

Ingraham, P. J.

(dissenting) :

I dissent for the reasons stated in the opinion of Houghton, J., in Matter of City of New York, West 177th Street (135 App. Div. 520).

Order reversed, with ten dollars' costs and disbursements, and motion granted, with ten dollars costs,  