396 Flatbush Avenue Extension Realty Corp. v. City of New York

Crane, J. The city of New York acquired in fee for rapid transit railroad purposes pursuant to the authority conferred by the Rapid Transit Act (Laws of 1891, ch. 4), the triangular plot of land situated on the westerly side of Flatbush Avenue Extension distant eight feet eleven inches southerly from the southerly side of DeKaib avenue, having the dimensions of sixty-four feet one and one-half inches along Flatbush Avenue Extension and forty-seven feet eleven and three-quarter inches on the southerly side and forty-two feet six and one-half inches on the northerly side. Upon the construction of the subway in Flatbush Avenue Extension an official map or plan was prepared and signed by the Transit Construction Commissioner, dated October 1, 1919, for the purpose of the sale, under authority of the Rapid Transit Act, of property not retained for rapid transit purposes. This plan shows easement areas to be retained aggregating 828 square feet out of the total area of the plot of 1,021 square feet. The easement area indicated as part 1 contains 291 square feet and extends upward to a plane ten feet above the elevation of the curb, as shown on the cross section at the lower left-hand corner of the map. This map, from the time of its preparation, was an official record of the Transit Construction Commissioner for the purpose of showing what was to be resold by the city and what was to be retained for rapid transit purposes. Thereafter, application was made by the Transit Construction Commissioner to the Commissioners of the Sinking Fund of the city of New York, as required by the *184 Rapid .Transit Act, for authority for the resale, the property to be sold being described fully in said application. This application refers to the resale map above mentioned and describes the property which it was intended to sell, as indicated on said, map, and as subsequently contained in the deed which was delivered to plaintiff’s predecessor. The property above described is in the form of a triangle. The entrance to the subway is on Flatbush avenue. As you enter you turn to the left and go down a flight of stairs, then left again onto the subway platform which is underneath the avenue. All of this triangle was not to be used and was not in use at the time of the sale. The diagrams in .evidence show that the entrance, stairway .and platform were the easements in actual use. Any one going to the place would see these structures as part of the subway. Not so the rest of the triangle. This the city desired and proposed to sell together with the right to use the space over the subway above a certain height. So we come to the descriptions, the auction sale and the deed. All is súpposed to have been done in good faith and we do not understand the city or the Commission as repudiating any of the acts of its agents or representatives. We may say right here, before going further, that the piece of property here in dispute is north of the subway station on Flatbush avenue, and about twenty-two square feet on the avenue. It also is a triangle. At the time of the sale it Was rented out for a news stand; it was not used as part of or in connection with the subway or the easement for a subway. What did the city sell and what , did it intend to sell? In the terms of sale it is stated as to plot IV,; which includes.the property in question, “Ample area for high-grade stands is permitted at the street-level * * * The principal value of this plot is for stands * * *. Nearly a year ago this office received an. offer of $3,600 per annum net ground rent.” Again it is stated, “ The properties will be sold in fee simple free and clear of. all *185 encumbrances, except certain permanent and perpetual easements to be reserved and retained for the maintenance and operation in perpetuity of the structures of the rapid transit subway railroads as they,now exist free of interference or right of interference.” “ In the case of Plot IV the subway structures may be altered with respect to the location of the present entrance facilities, providing such entrance facilities are not reduced in capacity or their safety impaired, and provided the approval of the Chief Engineer is secured as aforesaid.” This right or privilege was assured to the purchaser. The instructions given by the Commission to the auctioneer to be read prior to the sale were these: “ Those of you who have studied the detailed maps of the parcels to be sold, in the office of the Transit Commissioner or its predecessor, the Transit Construction Commissioner, will please note that the easement lines shown on such detailed maps do not always exactly follow the contours of the actual subway structures, but the easements as delimited on such drawings will not prevent the purchaser from utilizing any parts of the easement areas not actually occupied by the subway or structure or any of its supports, providing the subway or structure or any of its supports are not interfered with and the utility, stability and safety of the same are not impaired thereby.” “ With regard to Plot IV — The news stands which you may have observed to be in large part on the sidewalk are there by virtue of a license issued by the Bureau of Licenses. No such license, however, can be given without the consent of the abutting owner, and the purchaser of this property will have the right as owner to give consent for the issuance of the requisite license. For this consent the owner can of course charge an adequate rental.” From these instructions any one would gather that the actual structures were the easements, or else that any part of the easement areas not actually occupied by the *186 structures could be utilized by the purchaser for rental purposes. The deed for which the plaintiff’s predecessor in title paid $49,300 recited: “ Whereas, said real property so acquired by the city, except the permanent and perpetual easement and right-of-way therein, hereinafter described, has become unnecessary for rapid transit railroad purposes * * *. Now, therefore, this indenture witnesseth, That the city, in consideration of the premises and of the said sum of Forty-nine thousand three hundred dollars * * * does hereby grant and release unto the said party of the second part, her successors and assigns forever, subject to said easement and right-of-way therein, including the covenants and restrictions hereinafter expressed, all that certain plot,” etc., describing all of the large triangle including the existing structures, “ together with the appurtenances and all the estates, right, title and interest of the city in and to said premises, except said permanent and perpetual easement and right-of-way hereby reserved and retained.” Here is a conveyance in fee subject only to the easements. Are these easements restricted to the actual structures existing or may these be enlarged and extended? What are these easements? To determine this is to settle the case. The deed specifies these easements. Part 1 alone need be considered. “ Flat portion having a horizontal area of two hundred and ninety-one (291) square feet.” It is conceded by the plaintiff that this area takes in the triangle (smaller triangle) here in dispute. That is, the twenty-two square feet to the north of the subway entrance used for a news stand, are within this 291 square feet area. Only part of the area, however, is actually used for railroad or subway purposes. Exhibit 1-A, so much relied on by the respondent, shows this area as including the piece which the plaintiff here seeks to obtain. This exhibit is the map made and filed by the Transit Commission for the purpose of this sale. The *187 drawing designates part 1 as 291 square feet. However, the drawing also shows an elevation of the existing structure which excludes the property in dispute. Can we do better than give to this deed the construction placed upon it by the parties? The actual structures constituted the easements used for transit purposes; the remaining portion of the 291 square feet not so actually used was conveyed to the grantee in fee subject to an easement not then needed or used, and, until actually occupied by the railroad the grantee could utilize it for his own purposes. This is the representation made to the proposed purchasers at the auction and is the way the parties treated the grant thereafter for ten years. The news stand existing on this unused portion of the 291 square feet was not a railroad easement and is not claimed to be. Renting this unused and unnecessary property was not the easement subject to which the property was sold. When the grantee took title in fee he took all rights of ownership in this 291 square feet except as to such portion actually used for subway purposes or which thereafter might become necessary for such use. Until that time arrived he was entitled to possession and to the rents and profits derived from its occupation. The deed is dated July 19, 1921; the sale took place April 28, 1921. On April 30, 1921, the secretary to the Transit Commission wrote to the lessee of the twenty-two-foot frontage on Flatbush avenue (the property in dispute): “ Mr. Frank I. Bakst, “ 319 Pearl Street, “ Brooklyn, N. Y. “ Dear Sir: As you may be aware the property of the City of New York, under the jurisdiction of this Commission, located on the westerly side of Flatbush Avenue Extension, 8' 11" south of DeKalb Avenue, Borough of Brooklyn, which you in part occupy, was sold at public *188 auction on the 28th instant to Mr. B. Zirinsky of 392 Bushwick Avenue, Brooklyn. “ In ordinary course in accordance with the Terms of Sale, title to this property would pass to Mr.. Zirinsky on June 28, 1921. Therefore, you are advised that the rental agreement, under which you occupy a portion of these premises, will be terminated as of that date unless you are otherwise notified from this office or unless you make a separate arrangement with Mr. Zirinsky. • " Very truly yours, “ JAMES B. WALKER, “ Secretary To the husband of the purchaser the same secretary wrote July 21* 1921, as follows: “Dear Sir: As requested by you yesterday after the closing of title to the property on the westerly side of Flatbush Avenue Extension south of DeKalb Avenue, Borough of Brooklyn, I am sending you herewith copies of papers'pertaining to the temporary tenancies existing on the property previous to your taking title. You will note that Frank I. Bakst has paid rental up to and including:. July 15, ; 1921. We have this day .written him requésting that he pay us rental up to and including July 19, 1921, as Sarah Zirinsky had taken title on July 20,1921. “ Mr. George Lappos, the other tenant, paid rental up to July 1, 1921, and we have this day requested from him the payment of rental for the first 19 days of July, 1921, He was likewise advised that title was passed to Sarah Zirinsky on July 20, 1921. I do not send you a copy of the last receipt sent George Lappos for the reason that the receipt is part of another matter which may be confusing to your record and. which certainly does, not pertain to this property. Very truly yours, “ JAMES B. WALKER, “ Secretary.” *189 And again on July 21, 1921, the tenant was notified by the secretary as follows: “ Mr. Frank I. Bakst, “319 Pearl Street, “ Brooklyn, N. Y. “ Dear Sir: Referring to our notice to you of April 30, 1921, to vacate the premises on the westerly side of Flatbush Avenue Extension south of DeKalb Avenue: “ Please be advised that title to this property was passed from the City of New York to Sarah Zirinsky on July 20, 1921. Mr. Barney Zirinsky, who represents Sarah Zirinsky, lives at No. 392 Bushwick Avenue, Brooklyn. * * * ” It is too much of a demand upon our credulity to ask us to believe that the instructions to the auctioneer, these letters and the terms of sale were made and given without the authority of the Transit Commission. No one says so except the attorney by way of argument. There is no such testimony. We are justified, therefore, in taking this whole transaction as it appears without attempting to give it a strained and artificial construction. As to this 291 square foot easement, part 1, the plaintiff got a fee subject to an easement for railroad purposes. Part of it was in actual use, part was leased out for profit. The city’s easement for transit purposes will enable it to use the property for such purpose when reasonably necessary, but until then it has no right to the property. Las-Daub Realty Corp. v. Fain (214 App. Div. 8) does not pass upon this question or the rights in this property. In so far, however, as it holds that the plaintiff’s predecessor did not take a fee subject to these easements we do not approve it. The judgments below should be reversed and judgment directed for the plaintiff in accordance with this opinion, with costs in all courts.