Adaray Realty Corp. v. Faber

Order and judgment unanimously affirmed, with costs. Although, at the date of the execution of the contract, a large portion of defendants’ upland had been lost through encroachment by the ocean, this portion had been restored by having been filled in by the city of New York before the date of closing and there is no evidence in the record to show that defendants’ title to the filled-in land was defective. If they had title by grant or otherwise to the lands under water, they would be entitled to fill in or to permit the city to fill in such lands and thus restore the upland. (Matter of City of New York [Main St.], 216 N. Y. 67, 73.) If defendants had no title to the lands under water, the title thereto would be in the State and they could not acquire title merely by filling it in. As plaintiff failed to show that defendants had no title to the lands under water and that such title was in the State, the judgment was proper. Present — Lazansky, P. J., Rich, Young, Kapper and Seeger, JJ.