Regan v. Lanze

• Decision Date: 08 July 1976
• Citation: 387 N.Y.S.2d 79,354 N.E.2d 818,40 N.Y.2d 475
• Parties: , 354 N.E.2d 818 John M. REGAN et al., Respondents-Appellants, v. John A. LANZE et al., Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 79

387 N.Y.S.2d 79

40 N.Y.2d 475, 354 N.E.2d 818

John M. REGAN et al., Respondents-Appellants, v. John A. LANZE et al., Appellants-Respondents.

Court of Appeals of New York.

July 8, 1976.

Delon F. Mousaw, Rochester, for appellants-respondents.

Richard E. Regan, Rochester, for respondents-appellants.

COOKE, Judge.

This litigation arises out of a contract entered into between plaintiffs and defendants on December 22, 1971 for the purchase and sale of a residential parcel in the City of Rochester designated as 29 Hoyt Place.

On June 3, 1909, a subdivision map of certain real property situate south of Hoyt Place and east of Winton Road was filed in Liber 19 of Maps, at page 11, in the Monroe County Clerk's Office. Interestingly, the tract was a bit southerly of the bed of the old Erie Canal. The map displayed 11 lots in all, those numbered 1, 2, 3 and 4 fronting on the southerly bounds of Hoyt Place, lot 4 being the most easterly of those shown, and lot 3 adjoining 4 and being immediately westerly of it. Lots 3 and 4 were sold at a mortgage foreclosure sale and a referee's deed dated April 29, 1955 conveyed them to defendants. ^*

Pursuant to a description and map for the appropriation of property of the New York State Department of Public Works filed in the Monroe County Clerk's Office on September 25, 1959, the State appropriated a triangular-shaped piece of defendants' land fronting on the south side of Hoyt Place. The triangle was described as beginning 'in the existing southerly street line of Hoyt Place' at its intersection with the division line between property of Terrill on the west and property of defendants on the east, running thence southeasterly 90 feet 'along said southerly street line of Hoyt Place' to its intersection with the division line between the property of Carleton and Seymour on the east and property of defendants on the west, thence southwesterly 98.36 feet through defendants' lands to a point in the said division line between Terrill and defendants, thence northeasterly 32.74 feet along said last-mentioned division line to the point of beginning, containing 1,468 square feet of land. By a description and map filed by said Department of Public Works in the Monroe County Clerk's Office on June 13, 1962, the State also appropriated a narrow strip, of which the Brighton Cemetery Association was the reputed owner, which strip adjoined the 'southerly street line of Hoyt Place' and was located to the north of defendants' premises.

Thereafter and on September 11, 1962, defendants gave a mortgage to the Columbia Banking Savings and Loan Association covering a parcel at the northeast corner of their premises. The description of the mortgaged tract included a frontage of 77.68 feet along the southerly bounds of Hoyt Place and indicated that its northwest corner was 20.68 feet along the south line of Hoyt Place from the west line of defendants' premises. The total of these two distances along the southerly lone of Hoyt Place equals the distance of one side of the triangle as appropriated by the State in 1959, said side being also the relocated south line of Hoyt Place. The mortgage instrument stated that it was intended to mortgage a part of the premises conveyed to defendants in their 1955 deed and that there was excepted 'therefrom the land appropriated by the State of New York for the Rochester City Eastern Expressway.' On June 12, 1963, defendants gave another mortgage to Columbia upon their remaining property, which included the 20.68 foot frontage on Hoyt Place, and which also excepted therefrom 'the land appropriated by the State of New York for the Rochester City Eastern Expressway.' In January of 1964, a further mortgage was given by defendants to Columbia covering the said remainder and with the same exception.

In 1966 defendants conveyed to Tubiolo the parcel as first mortgaged to Columbia, same being carved out of the northeast portion of defendants' premises. The deed description corresponded to that set forth in the mortgage and included the same exception as to the State appropriation. In 1969, Tubiolo deeded this parcel to Doland and at the time of transfer gave a mortgage to the Security Trust Company of Rochester.

Having read a newspaper ad, plaintiffs became interested in defendants' house and lot. Plaintiffs visited the premises in early October of 1971 and spent about an hour there. According to testimony of plaintiff John Regan, he with defendant John Lanze, walked north out the driveway and easterly down Hoyt Place, the interstate highway was in plain sight, and Lanze pointed to a fence and said, 'That's the State's fence and that fence runs all the way along the north side of Hoyt Place.' Lanze, on cross-examination, related that he also told Regan that he subdivided the lots after the street was moved so he could build a house.

Negotiations culminated in a contract of December 22, 1971 wherein defendants agreed to sell the property in the City of Rochester 'known and described as No. 29 Hoyt Place. Lot size approximately 21 109 207 264 as per deed to you * * * together with a two story stone and frame dwelling now thereon.' The contract called for a closing of title on or before January 3, 1972 and, after questions were raised on behalf of plaintiffs regarding the effect of the appropriations and after divers mesne adjournments, a date was set for January 26, 1972. However, transfer of title did not then take place. The complaint of plaintiffs asserts four causes of action: first, for specific performance of the contract by defendants Lanze, for damages if said defendants cannot make good and marketable title to said premises, and for reformation of the descriptions in the mortgages to Columbia; second, for reformation of the deed to defendants Doland and of the mortgage given by said defendants to Security; third, for the recovery against defendant Charles Ambush Realty of the $1,000 deposit; and fourth, against the People of the State of New York for a declaratory judgment establishing rights of plaintiffs to easements over land appropriated by the State. The answer of defendants Lanze demanded judgment dismissing the complaint and asserted three counterclaims: one, for specific performance of the contract; a second, for damages for slander of title; and a third, for reimbursement of the broker's commission.

Special Term denied plaintiffs' motion for summary judgment and granted that of defendants Lanze for summary judgment dismissing the complaint and for judgment on their counterclaims. Applications of defendants Security and the State of New York to dismiss the complaint were granted. Upon appeal, the Appellate Division reversed the dismissal of the complaint as to Security (42 A.D.2d 830, 346 N.Y.S.2d 160). Stating that a trial was required, the Appellate Division also reversed the grant of summary judgment in favor of defendants Lanze, which had resulted in dismissal of the complaint and the award of judgment to them on their counterclaims, and granted summary judgment to plaintiffs dismissing the Lanzes' second and third counterclaims (42 A.D.2d 831). During the pendency of this appellate review, the appeal as to the State was discontinued upon delivery to plaintiffs of an instrument, executed by an assistant to the regional director of the Department of Transportation, declaring that the right of access of abutting owners, specifically 29 Hoyt Place, for ingress and egress and for maintenance of sewer connections in Hoyt Place as relocated was not taken by the appropriations of 1959 and 1962.

Shortly prior to trial a 'correction deed', quitclaim in form, signed by defendants Doland and Security, as well as by Peter and Ingrid Tubiolo, Dolands' predecessors in title, was delivered to plaintiffs, whereupon the action was discontinued as to the Dolands and Security.

Following trial without a jury in Supreme Court, Monroe County, it was found that the title to the property contracted to be conveyed by defendants to plaintiffs was good and marketable, that the description in the 1966 deed from Lanze to Tubiolo was accurate and properly described the property to be conveyed and that there was no limitation on the right of the owner of the parcel contracted to be conveyed to plaintiffs to access to Hoyt Place as relocated. Accordingly, the complaint was dismissed and judgment of specific performance was granted to defendants on their first counterclaim. Upon appeal from the judgment of Trial Term, the Appellate Division reversed, on the law and facts, granted judgment to plaintiffs for specific performance and awarded damages to plaintiffs. The Appellate Division found that defendants failed to produce marketable title and held that a title which requires parol evidence to prove its validity is not marketable.

In its opinion upon the second appeal, the Appellate Division stated: 'Since we held on the first appeal that the record title was defective enough to require an evidentiary hearing on purchasers Regans' claims, the trial court erred in determining that the defendants Lanzes' title was marketable at the original date of closing' (47 A.D.2d 378 at p. 382, 366 N.Y.S.2d 512 at p. 516). The first appeal involved summary judgment and there were indications that there were questions of fact to be determined, such as the location of the Doland parcel, the inclusion or not of the triangular area at the north end of the premises and the description of the property covered by the contract. We can find no statement in the Appellate Division's first memorandum decision to the effect that 'the record title was defective enough to require an evidentiary hearing' and it does not follow that the trial court therefore erred in determining that Lanzes' title was marketable, particularly when the character of the summary judgment motions under review on the first appeal is kept in mind.

The disposition of this case turns on the marketability of defendant...