
    In re BOARD OF STREET OPENING AND IMPROVEMENT OF CITY OF NEW YORK. In re BAIRD.
    (Supreme Court, General Term, First Department.
    April 14, 1893.)
    Deed—Description of Property—Exceptions.
    A deed conveyed two lots, “excepting therefrom, however, so much of' said lots as has been taken for the opening of 127th street and the widening of M. street.” A long time prior to the date of the deed, 127th street had been laid out by the commissioners on a map filed by them, but proceedings to condemn the land and actually appropriate it were not commenced until some time after the deed. Held, that those portions of the lots over which the street had been laid out passed by the deed, and the-grantee was entitled to the damages therefor on opening the street.
    Appeal from special term, Isew York county.
    
      Proceedings by the board of street opening an£L improvement of the city of New- York for the opening of 127th street, from the Boulevard to Manhattan street. An award having been made for land taken for the street, James Baird petitioned for an order of reference to determine his title thereto, and for an order allowing him to offset the same against the assessment of benefits made against him. The referee found against petitioner, and his report was confirmed.
    Petitioner'appeals. Reversed.
    Argued before VAN BRUNT, P. J., and INGrRAHAM, J.
    Foley & Powell, for appellant.
    James A. Deering, for respondents.
   PER CURIAM.

The question presented here is as to the ownership of an award made in this proceeding to open 127th street, in the city of New York, from the Boulevard to Manhattan street. Thomas Lang was the owner in fee of certain real estate in the city of New York, including two lots of land, designated on a map of Manhattanville made by Adolphus Loss as lots Nos. 104 and 106. All his estate, both real and personal, he devised to his children by will, which was duly admitted to probate. The children of said Thomas Lang having agreed to make partition of all the real estate of which he died seised, and to convey to each their respective shares, and having agreed that the two lots in question should be conveyed to one of the children, named John Lang, the other children executed a deed, dated the 30th of June, 1875, conveying to him the two lots in question by the following description:

‘‘All those two certain lots or parcels of ground situate, lying, and being at Manhattanville, and known and distinguished on a map of Manhattanville aforesaid made by Adolphus Loss, city surveyor, September 15,1806, by the numbers 104 (one hundred and four) and 106 (one hundred and six,) on the southwesterly side of Manhattan street, bounded northeast, in front, by Manhattan street, southeast by lot number 108, (one hundred and eight,) southwest, in the rear, by Blackberry alley, and northwest by lot number 102, (one ■hundred and two,) being the same premises conveyed to Thomas Lang by Joseph Husson by deed dated February 1, 1850, and recorded on the same day in the office of the register of the city and county of New York in Liber 533 of Conveyances, page 457, excepting therefrom, however, so much of said lots as has been taken for the opening of One Hundred and Twenty-Seventh street and the widening of Manhattan street.”

John Lang and Annie, Ms wife, by deed dated the 25 th day of January, 1877, conveyed the said two lots by the same description to James Baird, the appellant herein. At the time of these conveyances a portion of the lots, as shown upon the Loss map, had been taken for the widening of Manhattan street; and, prior to the lime of those deeds, 127th street, between Manhattan street and the Boulevard, was laid out by the commissioners of streets and roads on a map filed by them on the 1st of April, 1811, under and pursuant to chapter 115 of the Laws of 1807, but no proceedings had been taken to condemn the land included in 127th street, or to actually appropriate it for street purposes. Subsequently this proceeding was commenced to condemn the land. included in 127th street, which embraced a portion of these two lots in question, and an award was made to the owners of such portion of these two lots as was included in 127th street, and the order appealed from gave to the heirs at law of Thomas Lang, the testator, the award thus made.

The question to be determined is whether, by the deed from the heirs at law of Thomas Lang to John Lang, the portion of the two lots in question included within the bounds of 127th street was excluded from that conveyance. The court below held that it was excluded from the conveyance, and remained vested in the heirs at law of Thomas Lang. We think, however, that it was not the intention of the parties to that deed that any portion of the two lots Nos. 104 and 10G on the Loss map, to which they still had title, should be excepted from the conveyance; that all that was intended to be excepted was those portions of the lots to which they had lost title by reason of the proceedings of the city in actually taking them for street purposes. The language used clearly implies that the exception was to relate only to so much of the lots as had been, before the execution of the conveyance, actually taken for the opening of these streets, and not to any portion of the property which might in the future be taken for the opening of the streets in question. There was nothing to show that the grantors had any intention to reserve these small pieces of land that in the future would be necessary to be taken for 127th street. So far as appears, they owned no property in the vicinity to which these pieces of land could be useful, and, in the face of the clear language used, we fail to see how any other intention could be implied. The order appealed from should therefore be reversed, and the amount of the award directed to be paid to the appellant, with costs and disbursements in the court below, and $10 costs on this appeal, and disbursements.  