Broadway Realty Co. v. Lawyers' Title Ins. & Trust Co.

• Decision Date: 20 May 1919
• Citation: 123 N.E. 754,226 N.Y. 335
• Court: New York Court of Appeals Court of Appeals
• Parties: BROADWAY REALTY CO. v. LAWYERS' TITLE INS. & TRUST CO. et al.

226 N.Y. 335

123 N.E. 754

BROADWAY REALTY CO.

v.LAWYERS' TITLE INS. & TRUST CO. et al.

Court of Appeals of New York.

May 20, 1919.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Broadway Realty Company against the Lawyers' Title Insurance & Trust Company and others. From a judgment of the Appellate Division (171 App. Div. 792,157 N. Y. Supp. 1088), reversing a judgment of the Trial Term (91 Misc. Rep. 137,154 N. Y. Supp. 1024), entered on a verdict directed by the court in favor of plaintiff, and dismissing complaint, plaintiff appeals. Reversed, and judgment of Trial Term affirmed.

Collin, Cuddeback, and Andrews, JJ., dissenting.

Arthur H. Masten, of New York City, for appellant.

P. S. Dean, of New York City, for respondents.

POUND, J.

This appeal presents the question of the construction of a policy of insurance of the marketability of title of certain premises issued to the appellant by the respondent, which is dated December 16, 1896, but which seems to have been delivered at a later date, as it refers to a survey of February 27, 1897, a duplicate of which is annexed to the policy. The question is whether the premises, the title of which is insured, are the lands described in the policy by metes and bounds only, or, in addition, all the lands on which a building then being erected, known as ‘Bowling Green Offices,’ actually stood.

Under the heading ‘The Description of the Property, the Title to Which is Insured,’ comes a description of the property by metes and bounds. Then follows these words:

‘And also the building now being erected on said premises known as the ‘Bowling Green Offices'; the lands the title to which is hereby intended to be insured, being that on which said building now stands as shown by the survey of Francis W. Ford, dated February 27, 1897, a duplicate of which survey is hereto annexed.’

The survey shows Bowling Green Building as entirely within the lot lines, and shows no part of the premises as encroaching upon Broadway. Exceptions are sometimes explicitly made in such policies of any state of facts which an accurate survey would show, and of objection to title of such part of premises as lies within the limits of Broadway; but it seems somewhat significant that such objection are not excepted from the title insured in the policy under consideration.

When the policy was issued, the building therein described encroached beyond the line of the land described by metes and bounds into Broadway. Subsequently the plaintiff was required to remove the encroachment at a cost of about $16,000. For this sum action was brought and judgment was directed by the trial court. The Appellate Division held that the policy covered only so much of the building as stood upon the land specifically described, that the survey was a part of the contract, and that the policy covered only the hypothetical building shown on the survey, and not the land on which the actual building stood, and dismissed the complaint. This disposition of the case we think was more favorable to defendant than the ordinary and proper rules for the construction of contracts permit.

[1][2] The contract was drawn by defendant. In construing its terms, if any are doubtful or uncertain, defendant must...