Grant v. Koenig

• Citation: 333 N.Y.S.2d 591,39 A.D.2d 1000
• Parties: Peter W. GRANT et al., Appellants, v. Francis R. KOENIG, as Mayor of the City of Kingston, et al., Respondents.
• Decision Date: 29 June 1972
• Court: New York Supreme Court Appellate Division

Page 591

333 N.Y.S.2d 591

39 A.D.2d 1000

Peter W. GRANT et al., Appellants, v. Francis R. KOENIG, as Mayor of the City of Kingston, et al.,

Respondents.

Supreme Court, Appellate Division, Third Department.

June 29, 1972.

Wapner, Koplovitz & Fabricant, Woodstock (Joshua N. Loplovitz, Woodstock, of counsel), for appellants.

Aaron Klein, Corp. Counsel, Kingston, for respondents, City of Kingston, its Mayor & Common Council.

Richter & Werbalowsky, Kingston, for respondent, Joyce Schirick Post #1386 V.F.W.

Before STALEY, J.P., and SWEENEY, SIMONS, KANE and BEYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term entered October 14, 1971 in Ulster County, which granted defendants' motions for summary judgment dismissing the complaint.

In October of 1946 four members of the Rice family conveyed a parcel of land to the City of Kingston on the express condition that said land was to be used for public park purposes to be identified as 'Rice Park' in memory of Senator Jacob Rice and Sophie Rice, his wife. The deed contained the following language: 'and that in the event of the discontinuance at any time hereafter of the use of such lands for public park purposes or of the use of the name 'Rice Park' to identify said lands, all of the same shall immediately revert to the parties of the first part or their heirs'. On December 2, 1969 the Common Council of the City of Kingston passed a resolution of intent to discontinue use of the property as a park. Thereafter quitclaim deeds were executed by numerous heirs of the original four grantors to the VFW Post, each containing the language: 'to extinguish a right of reversion contained (in the 1946 deed)'. Subsequently, on July 29, 1970 the city conveyed the property to the VFW Post and the four deceased original grantors.

Plaintiffs seek a declaration in this taxpayers' action, brought pursuant to section 51 of the General Municipal Law, that the deed given by the city is illegal, null and void and restraining the VFW Post from taking any action Pendente lite. Special Term granted defendants' motions for summary judgment and plaintiffs appeal from that order. We are of the opinion that the order should be affirmed.

The 1946 conveyance from the Rices to the city created a fee simple subject to a condition subsequent. (See Fausett v. Guisewhite, 16 A.D.2d 82, 225 N.Y.S.2d 616; 20 N.Y.Jur., Estates, § 33.) The future estate remaining in the grantor is called a right of reacquisition (EPTL 6--4.6). At common law this right of reacquisition was neither assignable, devisable nor descendible before or after breach of the condition and an attempt to assign the right extinguished it and destroyed the condition (Fausett v. Guisewhite, Supra). The Legislature by enacting section 6--5.1 of the Estates, Powers and Trusts Law, however, has made all future estates descendible, devisable and alienable. (See generally, Practice Commentary by I. Leo Glasser, McKinney's Cons.Laws of N.Y., Book 17B, EPTL 6--4.6, p. 85.) On December 2, 1969 when the city formally abandoned the use of the property here involved as a public park, the right of reacquisition was thereby reposed in the heirs of the original four grantors. Plaintiffs contend nonetheless that the deeds executed by these heirs effected a waiver of such right of reacquisition. We believe, however, that when the language of the deeds is considered, along with the circumstances surrounding the transaction, the deeds should be construed as transferring rather than extinguishing the...