Phillips v. . West Rockaway Land Co.

Hogan, J. Though two parties were named as defendants in this action, a stipulation was entered into upon the trial that if the plaintiff was entitled to relief against defendant West Rockaway Land Company he would be entitled to relief against both defendants named in the complaint. The fmrltng of the trial justice that there was no intent on the part of defendant or its broker, Mr. May, to deceive plaintiff together with the fact that defendant had informed May of its intention to construct a boardwalk, and the statement made by May to plaintiff that *513 other than a boardwalk there would be nothing between the lots pointed out and the ocean, necessarily results in a conclusion that May gave to plaintiff the information imparted to him by defendant which in good faith the defendant at that time intended to carry out. The plaintiff was interested only in ocean front lots and would not consider any other site. May having in the first instance been advised of that fact took plaintiff on the land as we must assume from the findings for the purpose of showing him ocean front lots, pointed them out, told plaintiff they were the nearest lots to the ocean for sale, and made the statement relating to the absence of anything between them and the ocean save a boardwalk. The map then in custody of May and the physical situation as to streets improved, etc., ending at the southerly lot clearly indicated the lots as ocean front lots. The plaintiff in reliance upon the statements made to him and the situation and location pointed out to him purchased the lots, paying therefor ,|2,775. The defendant accepted and retained the fruits of the services of May and the acts of the latter are imputable to defendant. Stress is laid upon the inscription appearing on the map shown to defendant which read “ all right, title and interest in and to the beach front reserved to the West Rockaway Land Co.” The inquiry is pertinent, what did-the defendant intend by that inscription? The plan of defendant at that time was to erect a boardwalk. Plaintiff so advised, made no objection to the lots on that account. Was not that inscription placed upon the map for the purpose of reserving the right to construct such walk? If such was not the intention and purpose of defendant, but on the contrary the inscription was placed on the map with a view of reserving to defendant a right to sell the property for building purposes, clearly the defendant and May did intend to *514 deceive the plaintiff as the latter had been assured that only a boardwalk would at any time exist between the lots sold and the ocean. In view of the finding of absence of intention on part of defendant and May to deceive the plaintiff, it must follow that plaintiff would be justified in a belief that the inscription was intended as a reservation of that part of the land for the purpose of a boardwalk' alone. Immediately after plaintiff took title to the lots on July 5, 1912, and paid defendant $2,775 for same, he erected a cottage fronting the ocean, siding on the street, and expended on same $8,425.02. Defendant not only accepted plaintiff’s money, $2,775, for what was represented to him to be, and gave every indication of being in fact, “ ocean front ” lots, but stood by silently, observed plaintiff erect .his cottage facing the ocean, occupy the same for three seasons with an unobstructed view of the ocean, and in July, 1915, experienced a change of mind, concluded to abandon the project and thereupon platted the land between the property of plaintiff and the ocean into lots extending even beyond mesne high-water mark, offered the lots, including “ ocean front ” lots for sale, thereby asserting a right to effectually injure plaintiff’s property by depriving him of ocean front lots and leaving his cottage facing not the ocean or a boardwalk but the side of a building which may be erected immediately south of his cottage. Such act on the part of the defendant is irreconcilable with the representations made by defendant and its broker to the plaintiff upon which the latter relied and acted. The trial justice as conclusion of law held that there was no dedication of the land lying between plaintiff’s property and the ocean to the purpose of a boardwalk. The conclusion I have indicated from the inscription on the map and the conduct of the defendant would be more consonant with the facts as found, but whether there was or was not a dedication of the land to the *515 purposes of a boardwalk is immaterial. The defendant as an inducement to plaintiff to purchase the lots represented that there would not be anything between the lots sold and the ocean except a boardwalk, and by reason of its declarations and reliance of plaintiff thereon the latter purchased what was represented to him as ocean front lots, parted with $2,775, which defendant has in its possession, and thereupon expended upwards of $8,000 for a cottage thereon. Defendant on the day of the sale of the lots was the owner of the lots and of the sand shore south of same to high-water mark. At time of the sale and as part of the same transaction defendant subjected the land south of plaintiff’s lots to a permanent, open and continuous service or easement in favor of the part sold to plaintiff, save that defendant might erect a boardwalk thereon. Defendant was thereafter equitably estopped from asserting title to and a right to sell the lands south of plaintiff’s lots. (Trustees, etc., v. Smith, 118 N. Y. 634; Matter of Franckel, 157 N. Y. 603; Rogers v. Salmon, 8 Paige, 559; Lampman v. Milks, 21 N. Y. 505.) It is a familiar principle that a court of equity having obtained jurisdiction of the parties and the subject-matter of the action will adapt its relief to the exigencies of the case. (Valentine v. Richardt, 126 N. Y. 272.) The facts of this case clearly justify "the application of that principle. The conclusions of law are not sustained by the facts found and the judgments below should be reversed and a new trial granted, costs to abide the event. His cock, Ch. J., Cardozo, McLaughlin and Andrews, JJ., concur; Chase and Pound, JJ.¡ dissent. Judgment reversed, etc.