Magee v. City of Brooklyn

• Decision Date: 21 December 1894
• Citation: 144 N.Y. 265,39 N.E. 87
• Parties: MAGEE v. CITY OF BROOKLYN. DELAP v. SAME.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 265

39 N.E. 87

MAGEE

v.CITY OF BROOKLYN. DELAP v. SAME.

Court of Appeals of New York.

Dec. 21, 1894.

Appeal from city court of Brooklyn, general term.

Action by William Magee against the city of Brooklyn to recover an award. Action by Peter Delap against the same defendant for the same purpose. From judgments of the general term (22 N. Y. Supp. 179, 1136), affirming judgments for plaintiffs, defendant appeals. Affirmed.

Albert G. McDonald, for appellant.

John Cummins and Frank N. O'Brien, for respondent Magee.

Jackson & Burr, for respondent Delap.

O'BRIEN, J.

These cases both arise out of the same statute, and involve similar questions. Both were submitted together, and they may be conveniently treated as one appeal. The only question involved in either is to whom the awards, which it is conceded that the city is bound to pay, belong and are payable. By chapter 559 of the Laws of 1871, the lands were taken for street purposes, and it is conceded on all sides that the taking was effected by force of the statute itself, which has been upheld against constitutional objections, on the ground that a sure and safe method of making compensation was provided. The taking, however, was only constructive, as the owners remained in possession, and no attempt was made by the city to actually appropriate it to the purpose intended until about 18 years after the passage of the act. In the meantime the land was the subject of sale and transfer in various forms, and in many cases the title was changed from one party to another, and now, when the city has finally concluded to take and pay for the land, the question arises with respect to the party to whom the award rightfully belongs. The case has always been considered as sui generis, and the rights of the parties determined according to the peculiar facts and circumstances, upon equitable principles. Donnelly v. City of Brooklyn, 121 N. Y. 9, 24 N. E. 17;McCormack v. City of Brooklyn, 108 N. Y. 49, 14 N. E. 808.

In the first case, Magee, the plaintiff, has recovered in the courts below the amount of an award made by the commissioners to one Caroline C. Shwaitz on the 9th of November, 1876, who did not then own the land, nor the lot from which it was taken; she having conveyed the same a few months before, a fact of which the commissioners may have been ignorant. Charles R. Shultz was the owner of the lot when the act was passed, but on the 10th day of January, 1874, he conveyed it by metes and bounds to Mrs. Shwaitz, by a full covenant deed, including in the description the whole lot, and therefore the land for which the award was made, precisely as if the act had never been passed. On March 20, 1876, Caroline C. Shwaitz conveyed in the same way to Sarah F. Mann, and through several mesne conveyances, all in the same tenor, the plaintiff obtained the title, on the 2d of July, 1890. The deeds in every case purported to grant ‘all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part of, in, and to the same, and every part and parcel thereof,’ and, as already stated, contained full covenants. The party to whom the award was made and her...