Koff v. Frank
| Decision Date | 10 November 1959 |
| Citation | 22 Misc.2d 551,194 N.Y.S.2d 753 |
| Parties | Irwin J. KOFF, Plaintiff, v. William FRANK, Margaret Frank, Joel Grossblatt, Rose Grossblatt, Aimee Elliot, Anna Sullivan, Anna Gibbons, Boris Tucker, Morton Brauer, Joseph Price, Raphael Durante, Martin J. Quinn, Dolores Quinn, William M. Monohan, Katherine Monohan, Louis Greenfield, Marcel P. Kirwin, Mabel Clampett, 'John Doe', 'Richard Roe', 'Henry White', 'Albert Black', 'Robert Smith' and 'Hubert Brown,' (the last six names being fictitious, true names unknown to plaintiff), the parties intended being assignees or grantees of the aforementioned defendants, Defendants. |
| Court | New York Supreme Court |
Feinson & Feinson, New York City, Herbert G. Feinson, New York City, of counsel, for plaintiff.
Lawrence W. McKeown, Mineola, for defendants.
Plaintiff conducts an 'Associated Food Market' at certain premises owned by him in East Atlantic Beach, New York. The parcel is bounded on the north by Beech Street, on the west by Brookline Avenue, and on the east, he alleges, by Nevada Avenue. Defendants, on the other hand, claiming the westerly half of Nevada Avenue adjoining plaintiff's premises is not a public street but private property to which they have title, and objecting to his use thereof for loading and unloading huge trucks, have erected a fence four feet high in this disputed strip, beginning at a point about 25 feet south of Beech Street and running along the edge of the sidewalk parallel with plaintiff's building to the rear line thereof, thereby barricading plaintiff's free access to Nevada Avenue and hampering the delivery, loading and unloading of merchandise at this point. In this action, plaintiff challenges defendants' right to erect and maintain the fence in what he claims to be a public street and asks for an injunction mandating its removal. Defendants have counterclaimed in trespass for damages.
The facts disclose that on November 13, 1923, Long Beach on the Ocean, Inc., the then owner of this entire area, caused a map to be made and filed in the Nassau County Clerk's office known as 'Map No. 2, West End, Long Beach, N. Y. etc.' and filed as map No. 536, on which is laid out, inter alia, Nevada Avenue, the street in question. There is attached to this map a certificate of Archibald G. Patterson, Superintendent of Highways of the Town of Hempstead to the effect that he consents that the map 'showing--Nevada Avenue width thirty nine feet--be accepted and filed with the County Clerk of the County of Nassau.' At that time this entire territory formed part of the Town of Hempstead. Three years later, Long Beach, which had been chartered as a City in 1922, had its westerly boundary extended, by legislative act, to a line 19 1/2 feet west of the easterly side of Nevada Avenue. Chapter 448, Laws of 1926. The City of Long Beach thereupon paved this easterly half of Nevada Avenue and has since maintained it is a public street. The westerly half remained in its original sandy state until about 1951 when one Milchael J. Sullivan, plaintiff's predecessor in title, had it packed with cinders, at his expense.
Bordering the west side of Nevada Avenue and forming the westerly boundary of the above mentioned Map No. 2, is a one foot reserved strip running from Reynolds Channel to the Atlantic Ocean. To the west and contiguous to this one foot strip is another filed map covering property owned by Sheer-Long Beach Co., Inc. The effect of this reserve strip was to deny to owners on the Sheer-Long Beach Map any direct access to Nevada Avenue.
In 1941, Long Beach on the Ocean, Inc. went into bankruptcy and Michael J. Sullivan purchased from the Trustee in Bankruptcy by quitclaim deed dated October 19, 1950, the westerly 19 1/2 feet of Nevada Avenue together with the one foot strip adjoining it on the west. There is an addendum to this deed subscribed to by Michael J. Sullivan reading as follows:
'The above parcel of land was purchased for the purpose of widening Nevada Avenue to 39 ft. and shall remain a highway forever and ever with NO encumbrances whatsoever on it,
'Exceptions--lots 3-34 Brookline Ave. E. Atlantic Beach, shall be guaranteed trespass upon Nevada Ave. property, * * *.
'(signed) Michael J. Sullivan.'
At the time of this acquisition Michael J. Sullivan was the owner of lots 35 to 37 plus the northerly 20 feet of lot 34 on the Sheer-Long Beach Map, all of which adjoins the one foot strip on the west. This is the property later acquired by plaintiff. The allusion to a right of trespass (sic) upon Nevada Avenue is obscure. Perhaps the word intended was 'egress' but even the need for this is not clear since the same deed conveyed the one foot strip. The first part, however, is crystal clear and certainly purports no right to eliminate or obstruct Nevada Avenue.
On July 26, 1954, the defendants acquired by quitclaim deed from Michael J. Sullivan the westerly 19 1/2 feet of Nevada Avenue from Beech Street to the Atlantic Ocean. This deed, ineptly drawn, following the deed into Sullivan from the Trustee, eliminates the one foot strip from the general description and mistakenly fails to do so from the metes and bounds description which follows. I say 'mistakenly' because on January 14, 1955, when Sullivan sold plaintiff the 'supermarket premises' which was on the Sheer map, he also conveyed to him, by separate deed, the one foot strip. This latter deed included a right to use the surface of Nevada Avenue.
While as a general principle of construction, where there is a variance between a general description and the metes and bounds description the latter will control, this is not invariably the case. These principles are merely guides to ascertain the intention of the parties. Green v. Horn, 207 N.Y. 489, 499, 101 N.E. 430, 434; Brookman v. Kurzman, 94 N.Y. 272, 276. As was stated in Darling v. Alexander, 130 App.Div. 85, 114 N.Y.S. 334, 335:
In addition to condemnation, with which we are not here concerned, the time-honored methods by which a public street may be created are (1) by an offer of dedication from the owner of the property followed by an acceptance by the proper public authority, or (2) by public user for the period necessary for the ripening of a prescriptive right (formerly 20 years under § 189 of the Highway Law but effective April 20, 1959, reduced to 15 years). Since there was not sufficient proof adduced upon the trial to substantiate a claim under this latter method, we may confine our inquiry to the former.
The first method is in the nature of a contract involving both an offer by the owner and an acceptance by the municipality and depends upon appropriate acts by each evincing such an intent. People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394, 7 N.E.2d 833, 835. As to the offer, the court in this latter case said, 'where a plot is made and recorded, the requisite intention is generally indisputable.' Citing Dillon on Mun.Corp. § 636 renumbered § 1079 in the 5th Edition. That is the situation here.
Defendants have directed their attack more to the sufficiency of the acceptance rather than to the competency of the offer, relying on § 278 of the Town Law. That section does indeed provide in relevant part, that a street shown on a plat shall remain a private street until 'formally accepted as a public street by resolution of the town board'. This section was applied without comment in Carman v. Hewitt, Sup., 105 N.Y.S.2d 239 modified 280 App.Div. 866, 114 N.Y.S.2d 266, affirmed 305 N.Y. 718, 112 N.E.2d 785, to a map filed in 1909, although § 278 in that form was not enacted until 1938. Its predecessor was § 149-o of the Highway Law as added by the Laws of 1927, and this section contained no such provision, nor does it appear to have been derived from any earlier section. For this reason, I am unable to follow that case.
In examining the laws in effect in 1923, I find no specific statutory authority, either for or against the procedure followed by the Town Superintendent of Highways in accepting this map. At that time § 191 of the Highway Law entitled: 'Highways by dedication', provided that whenever land...
To continue reading
Request your trial
-
Sargent v. Brunner Housing Corp.
...Holding Co., 244 N.Y. 22, 154 N.E. 652; Maspeth Branch Realty, Inc. v. Waldbaum, Inc., 20 A.D.2d 896, 249 N.Y.S.2d 32; Koff v. Frank, 22 Misc.2d 551, 194 N.Y.S.2d 753; Syracuse Supply Co. v. Railway Express Agency, Inc., 45 Misc.2d 1000, 258 N.Y.S.2d 477; 17 N.Y.Jur., Easements & Licenses, ......
-
Hering v. Town of Canandaigua
...103 N.Y. 77, 8 N.E. 514; Walker v. Caywood, 31 N.Y. 51; Mangam v. President, etc., of Village of Sing Sing, supra; Koff v. Frank, 22 Misc.2d 551, 556, 194 N.Y.S.2d 753, 759.) The motion is, therefore, granted to the extent of declaring that the only issues of fact remaining in the case are ......
-
Barnett v. Washoe County
...be ascertained. Davis v. Moore, 387 P.2d 483 (Okl.1963); Brown v. Huckabaa, 264 Ala. 660, 89 So.2d 180 (1956); Koff v. Frank, 22 Misc.2d 551, 194 N.Y.S.2d 753 (1959). The district judge did so in the instant case by receiving into evidence the written offer of the donor-grantor offering the......
-
Minor Subdivision Plot Approval No. 88-340 for Stanley Robinson, In re, 90-016
...land, reserved from the major parcel granted, with the object of limiting the accessibility of the parcel. Koff v. Frank, 22 Misc.2d 551, 553, 194 N.Y.S.2d 753, 756 (Sup.Ct.1959); Warren v. Protano, Inc., 155 N.Y.S.2d 686, 689 (Sup.Ct.1956). That is the opposite of the case at bar. Since al......