author: O’Brien, J.

text:
    Ray Gibbs, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.
    (Argued April 1, 1931;
    decided May 12, 1931.)

      Peter C. Mann for appellant.
    The aeronautical and submarine exclusion clause in plain language excludes from the double accident feature insured’s death, resulting from the fall of an airplane while he was a passenger therein. (Pittman v. Lamar Life, 17 Fed. Rep. [2d] 370; United States v. Burr, 25 Fed. Cas. No. 14692a; United States v. Ybanez, 53 Fed. Rep. 536; Leathers v. Greenacres, 53 Me. 561.)

      William A. Hyman for respondent.
    A trip from Albany to New York city in an aeroplane of a company engaged in the transportation of passengers for hire and operating a regular route and system of transportation between the two cities is not an “ aeronautic expedition ” within the meaning of the policy. (United States v. Burr, 25 Fed. Cas. 187; Bushey & Sons v. American Co., 237 N. Y. 24.)
   O’Brien, J.

Harold Gibbs took out a policy in favor of his mother, this plaintiff, whereby defendant insured his life. The policy provides for double indemnity for death by accident, unless it should result from or be caused directly or indirectly by “ * * * military or naval service of any ldnd in time of war or by engaging as a passenger or otherwise in submarine or aeronautic expeditions.” While the insured was traveling as a passenger from Albany to New York in an airplane operated by Coastal Airways, Inc., which maintained a regular passenger service, the machine fell and Mr. Gibbs sustained mortal injuries. Plaintiff has recovered the amount of the double indemnity on the theory that, within the meaning of the policy, the trip or journey was not an expedition.

Respondent cites definitions by lexicographers and courts which in terms restrict the word expedition ” to a march or voyage with martial intentions. Such could not have been the meaning as employed in this policy. Earlier in the same clause in which the word occurs, exceptions have specifically included military or naval service of any kind in time of war.” Therefore, provision had already been made in instances where martial intentions are involved and no purpose to repeat the thought will be presumed. An expedition by submarine or aeronautic vessel may indeed be conducted for purposes of discovery or exploration, but who has ever heard of passengers accompanying such an enterprise? Those who participate in these undertakings, whether their object be the polar regions or the depths of the sea, are, practically without exception, members of the crew or band. Scientists, mechanics, chaplains, navigators, journalists, photographers, painters all belong to the company and are not set aside as passengers. So seldom, if ever, is one accepted for an expedition of discovery and exploration who has no duty to perform in furtherance of its purpose, that the word “ expedition ” when used in connection with the word passenger ” will not be conceived to have been employed in such an extraordinary and exceptional sense.

In the year 1924, when this policy was written, submarines, airplanes, dirigibles, even balloons had not been developed to the condition in which they exist today. Even now they are in a state of constant experimentation and improvement. Prior to 1924, it is true, transatlantic flights had been accomplished and at least one commercial submarine had crossed the ocean. For all that, a voyage either under the sea or in the air was not customary for the average individual. It was an extraordinary event and was thought to be and was accompanied by unusual hazards. A very small proportion of all people now living have ever been subjected to either experience. We conclude, therefore, that, in excluding from the benefit of a double indemnity death resulting to a passenger in a submarine or aeronautic expedition, the intent of the parties to the insurance contract grew out of and reflected the general belief that presence on a trip or journey in a vessel or machine of this type in regular transit constituted such a momentous adventure and was accompanied by such unusual danger and extraordinary hazard that neither party expected the policy to cover the risk of casualty.

The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in the Appellate Division and in this court.

Cabdozo, Ch. J., Pound, Cbane, Lehman and Kellogg, JJ., concur; Hubbs, J., dissents.

Judgment accordingly.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    News Syndicate Company, Inc., Respondent, v. Gatti Paper Stock Corporation, Appellant.

      (Submitted April 16, 1931;
    decided May 12, 1931.)

      Jerome A. Strauss for appellant.
    There was no default in the payment of the last invoice. (Devlin v. City, 124 App. Div. 184; Heinemann v. Heard, 62 N. Y. 448; Goodwin v. Smith, 72 Ind. 113.)

      Leonard P. Moore for respondent.
    Defendant’s default in payment resulted in the breach of its entire contract. (Pers. Prop. Law, § 126, subd. 2; Helgar Corp. v. Warner’s Features, Inc., 222 N. Y. 449; Price v. City of New York, 182 N. Y. 516; McLear v. Balmat, 238 N. Y. 568; Danielson v. Morse Dry Dock & Repair Co., 235 N. Y. 439; Heller & Brother v. Continental Mills, 233 N. Y. 641; Rabbe v. Squier, 148 N. Y. 81; K. S. Co. v. Inman, 134 N. Y. 92; Gardner v. Clark, 21 N. Y. 399; Eastern Forge Co. v. Corbin, 182 Mass. 590; Old Town Woolen Co. v. Tishman & Sons, 218 App. Div. 472; Barnes v. Dinslow, 56 Hun, 640; 130 N. Y. 687; Rathbone, Sard & Co. v. Virginia Iron C. & C. Co., 198 App. Div. 889; Demarest v. Dunton Lumber Co., 151 Fed. Rep. 508; Harris Lumber Co. v. Wheeler Lumber Co., 88 Ark. 491; Kokomo Steel & Wire Co. v. Macomber & Whyte Rope Co., 128 N. E. Rep. 362.)
   Hubbs, J.

This is an action by the seller against the buyer to recover damages, under an installment contract, because of an alleged breach of the contract by the buyer in neglecting to pay for an installment at the time stated in the contract.

The plaintiff is the publisher of a daily newspaper and a weekly magazine in the city of New York. On December 30th, 1925, it entered into a contract with the defendant for the sale of all the waste paper accumulated at plaintiff’s plant during the year 1926, the paper to be removed by defendant daily and the plaintiff to render invoices on the 1st and 15th of each month for the paper collected during the preceding fifteen days. The defendant agreed to pay for the same at the rates specified in the contract “ within fifteen days after presentation ” of invoice.

From January 1st, 1926, to the date of the cancellation of the contract by the plaintiff, effective August 19th, 1926, the defendant removed from plaintiff’s plant daily all waste paper in accordance with the terms of the contract. Commencing early in 1926, the defendant failed to make payments on time. The delay, commencing with the payment due June 1st down to the payment due July 30th, ranged from ten to twenty-three days. The plaintiff repeatedly called the defendant’s attention to the delay in making payments and advised the defendant that it could not be tolerated. Under date of August 5th, the plaintiff, through its attorneys, advised the defendant by letter that unless the payment due on August 1st was made on or before August 9th, the plaintiff would rescind the contract. That letter contained the following clause: “You have failed to keep your various promises concerning payments on many occasions and such conduct on your part cannot and will not be tolerated by our client any longer.” The payment to which that' letter referred was made within the time mentioned therein.

On July 31st, 1926, the plaintiff billed the defendant for paper removed during the period from July 16th to July 31st, inclusive, which at the contract price amounted to $2,319.41. There is due proof of the addressing and mailing of the bill in question. The mailing of the bill created a presumption that it reached its destination. (Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473, 477.) The presumption is “ founded on the probability that the officers of the government will do their duty; and the usual course of business.” (Huntley v. Whittier, 105 Mass. 391; Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25.)

The offices of both the plaintiff and the defendant were in the city of New York. The fact that letters mailed in the city are received at the place of business of the party to whom mailed the next day after mailing is a matter of common knowledge and the court could take judicial notice of the fact that a letter mailed by the plaintiff to the defendant would be delivered in the usual course of the mails on the following day, in the event that it was not a Sunday or holiday, and if a Sunday or holiday on the next succeeding business day. That fact has been recognized by an able and experienced justice, who was a resident of that city. (Morel v. Stearns, 37 Misc. Rep. 486.)

The presumption is strengthened in this case by the fact that the attorneys for the plaintiff wrote two letters to the defendant, one of which must have been received the day it was written, as the letter of the defendant in answer to it was dated the same day that the letter from the plaintiff’s attorneys bears date. The defendant’s letter in answer to the other letter was dated the next day after the date appearing upon the letter from the plaintiff’s attorneys.

Since July 31st, 1926, was Saturday, the invoices may be presumed to have reached the defendant on August 2d, 1926. It should be noted also that the contract did not provide for the mailing of an invoice until August 1st.

The trial court found that the fifteen-day period, within which the defendant agreed to pay, expired on August 16th. In that the court was in error, as payment was only required to be made within fifteen days after presentation of invoices which, computed from August 2d, would be August 17th.

The defendant proved payment by the mailing of a check on August 16th, which check was dated on that day. The proof of mailing was incomplete, but no objection was made as to the sufficiency of the proof. In the absence of objection the evidence was sufficient to establish a mailing in the usual manner. (Oregon Steamship Co. v. Otis, 100 N. Y. 446-451.)

Presumably the check was received on August 17th. It is clear that the check was in the possession of the plaintiff on August 19th; was caused by plaintiff to be certified on that day and was charged against the defendant’s account that day by the bank upon which it was drawn. It is entered on the plaintiff’s books and deposited on August 21st. The plaintiff attempted to prove its usual course of business in the handling of checks which was to enter each check on its book on the day of receipt if during banking hours, otherwise on the following day. An exception to that rule is admitted in this case, because it is conceded that the check was in the possession of the plaintiff on the 19th, two days before it was entered on its books. In fact, there is an entire absence of proof on the part of the plaintiff as to when the check was received.

On August 18th the plaintiff’s attorneys notified the defendant in writing that because of the defendant’s breach of the contract, it had been canceled by the plaintiff and that August 19th would be the last day on which the defendant could take away the waste paper.

The burden was on the plaintiff to show an actual default. It failed to establish a prima facie case. Its attempt to establish the defendant’s default in paying, by testimony that it was plaintiff’s custom to credit checks on its book the day received or the next day, and that defendant’s check was not credited until the 21st, failed utterly when it conclusively appeared that it had the check in its possession on the 19th. When plaintiff rested its case, it was barren of any evidence that the defendant was in default on the 18th when the plaintiff’s attorneys wrote to the defendant canceling the contract, and the complaint should have been dismissed.

The same result is reached if it be assumed that the plaintiff established a prima fade case in the first instance. After the defendant introduced testimony that the check was mailed on August 16th the burden of going forward with the evidence was cast upon the plaintiff. The plaintiff failed to assume that burden. The plaintiff failed to offer any evidence as to when the check was received. The testimony of the defendant’s witness that the check was mailed on August 16th was not disputed. The check was dated on that day. There is a presumption that it was drawn and executed the day it bears date. In the absence of proof as to when it was received it was to be presumed that it reached the plaintiff on August 17th. That the check was received and cashed by the plaintiff is admitted. Therefore, the plaintiff, who had the burden of establishing the defendant’s default, entirely failed to establish that the check was not received on or before August 17th and failed to sustain the burden of proving that the defendant was in default in the payment of the invoice of August 1st.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts. (See 256 N. Y. 678.)

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Necessary for the Extension of a Public Beach in the Borough of Brooklyn. Realty Associates, Appellant.
    (Argued April 15, 1931;
    decided May 12, 1931.)

      William N. Dylcman, Sigourney B. Olney and Jules Haberman for appellant.
    Title to lands submerged by avulsion is not lost. (Mulry v. Norton, 100 N. Y. 424; Matter of City of Buffalo, 206 N. Y. 319; Nebraska v. Iowa, 143 U. S. 359; Philadelphia Co. v. Stimson, 223 U. S. 605; Schwartzstein v. B. B. Bathing Park, 203 App. Div. 700.) The title to land cannot be abandoned. (East Tennessee Iron & Coal Co. v. Wiggin, 68 Fed. Rep. 446; Marbury v. May, 9 Fed. Rep. [2d] 587; Philadelphia v. Riddle, 25 Penn. St. 259; Tarver v. Deppen, 132 Ga. 798; Kreamer v. Voneida, 213 Penn. St. 74; Northern Pacific Ry. Co. v. Tacoma Junk Co., 138 Wash. 1; Cameron v. Bustard, 119 Wash. 226; Cox v. Colossal Cavern Co., 210 Ky. 612; Allen v. West Lumber Co., 244 S. W. Rep. 499; Southern Coal & Iron Co. v. Schwoon, 145 Tenn. 191; Powell v. Bowen, 279 Mo. 280; Childers v. Kennedy, 189 Ky. 179; Reynolds v. Trawick, 78 So. Rep. 827; Miller Co. v. Grussi, 90 Conn. 555.)

      Arthur J. W. Hilly, Corporation Counsel (Patrick S. MacDwyer of counsel), for respondent.
    Appellant may not claim title by avulsion, since the area had not been restored or regained as land at the date when it was included in the proceeding. (Arkansas v. Tennessee, 246 U. S. 158; Stockley v. Cissna, 119 Fed. Rep. 812; Keel v. Sutton, 142 Tenn. 341; City of Chicago v. Ward, 169 Ill. 392; Philadelphia Co. v. Stimson, 223 U. S. 605; Matter of City of Buffalo, 206 N. Y. 319; People v. Steeplechase Park Co., 82 Misc. Rep. 247; Mulry v. Norton, 100 N. Y. 424; Benson v. Townsend, 7 N. Y. Supp. 162; Van Deventer v. Lott, 172 Fed. Rep. 574; Schwarzstein v. B. B. Bathing Park, Inc., 203 App. Div. 700.) The facts and circumstances show that the area has become a permanent part of the ocean by acquiescence. (O’Donnell v. Kelsey, 10 N. Y. 412; Woodbury v. Short, 17 Vt. 387; Ford v. Whitlock, 27 Vt. 265.)
   O’Brien, J.

In the year 1925, when title vested in the city of New York in this condemnation proceeding, appellant was the record owner of upland and land under water at Brighton Beach. By the exertion of its delegated power of eminent domain in this proceeding, the city acquired title to all of the upland but it asserts title to the lands under water by virtue of grants from the State. The premises appear on the damage map as three parcels of upland and five parcels of land under water. The submerged area formerly constituted upland, but, as the result of violent storms between the years 1878 and 1894, the Atlantic ocean tore away a large tract and by these avulsions much of the land, which had been conveyed to appellant’s predecessor by deed in 1875 and through mesne conveyances transferred to it, now lies under water. By the authority of statutes enacted during the years 1918 to 1925, inclusive, such title as the State might possess in lands under water from the westernmost point of Coney Island to the westerly boundary fine of Nassau county was granted to the city of New York. Awards have been made to appellant for the taking of the upland and the city has acquiesced in them. At Special Term, awards in excess of $1,800,000 were made for the lands under water described as damage parcels 10, 12, 13,16 and 18, but that part of the final decree was reversed on the law and the facts, the awards for them were vacated and appellant’s claim as to them was disallowed. The Appellate Division found that these parcels as the result of avulsions have been submerged by the Atlantic ocean for more than thirty years, that they have not been reclaimed and that the evidence proves an intention on the part of the upland owners to abandon them.

Although claimant held title by deed to all these parcels, respondent argues that, during the time that the land is submerged, the title which had vested in the upland proprietor, claimant’s predecessor, became lost to him and his successors and passed to the sovereign. It concedes, however, that the title could have been regained by reclaiming and filling the land under water or even by natural restoration but insists that, in the absence of either process, title remains with the city as grantee of the sovereign State. Assuming that land lost by erosion returns to the ownership of the State, we think that the same conclusion does not follow the effects of avulsion. In some treatises and even in judicial opinions in other States and in England occur confusing statements which might lead to an inference that in cases of avulsion their writers believed that private title was temporarily lost and was restored only when the waters receded or the land was artificially replaced. In this State the subject may not have been authoritatively settled by any actual decision which required adjudication of this question, but the expressions of opinion by distinguished judges reveal general concurrence in the view that the private owner is not divested even temporarily of his title. (Mulry v. Norton, 29 Hun, 660, 665; 100 N. Y. 424, 436; Matter of City of Buffalo, 206 N. Y. 319, 325, 327; Schwartzstein v. B. B. Bathing Park, 203 App. Div. 700, 703; People v. Steeplechase Park Co., 82 Misc. Rep. 247, 255, 256; 218 N. Y. 459, 480.) We accept this doctrine and now pronounce it law. The logical deduction from these judicial utterances is that the right to regain the land rests solely on the principle that the title to it remains in the riparian owner. It is not suspended by a physical catastrophe. We reject the theory that, according to the tangible character of the land, title can alternate between the individual and the public. It is static, always vested in one or the other, and we hold that it remains with the individual owner of the soil which had formerly been upland. The boundary of his title rather than the material extent of the land is the essential point for consideration. The State granted to the city whatever interest it might possess in these lands whose surface had been washed away. It had no interest except the public right of navigation over waters covering earth which previously had been upland.

The point also is made that even though private title may not have been suspended during the time of submergence, this area had, by acquiescence of the owners, become a permanent part of the ocean bed. This principle for which respondent contends is different from the rule applied in cases where by acquiescence through a term of years the boundary of land may be fixed by practical location. Without explicitly arguing in support of the principle announced by the Appellate Division, respondent in effect does invoke the doctrine that title has been lost by evidence of an intention to abandon the lands. We cannot agree with such a contention. While an easement may be capable of abandonment and, upon proof of acts clearly and unequivocally indicating such an intent (Roby v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 176), it will be deemed abandoned, the rule is different in respect to title. (Washburn on Real Property [6th ed.], vol. 3, § 1888; East Tennessee I. & C. Co. v. Wiggin, 68 Fed. Rep. 446, 449.) Failure to assert a valid title does not amount to an abandonment nor operate to extinguish it. (Marbury v. May, 9 Fed. Rep. [2d] 587, 588.) Where one acquires a title by deed, it will not be affected by non-user unless there is a loss of title in some of the ways recognized by law. Mere non-user of an easement, however long continued, does not create an abandonment. (Conabeer v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 474, 484.) Neglect for forty years to take possession or to bring action has been held not to constitute an abandonment. Precisely what is meant by ' an abandoned ’ legal title is hard to define. If it is the valid legal title, it is inconceivable how it can be abandoned. * * * If there has not been a devolution of title by operation of an adverse possession, their title is perfect, and their right of recovery would not be affected by a theoretical abandonment predicated alone upon a neglect of their estate.” (Lurton, J., in East Tennessee I. & C. Co. v. Wiggin, supra.)

The order of the Appellate Division should be modified in accordance with this opinion and that of the Special Term affirmed, with costs in the Appellate Division and in this court.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and Hubbs, JJ., concur.

Ordered accordingly.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Necessary for the Establishment of a Public Beach in the Borough of Brooklyn. West Tenth Street Realty Corporation, Appellant.
    (Argued April 15, 1931;
    decided May 12, 1931.)

      Andrew F. Van Thun, Jr., and Frank A. Kister for appellant.
    The submerged land lying between the high-water line of 1893 and the high-water line existing at the time claimant acquired its title was intended to be and was conveyed by the deed to claimant without any reservation or limitation whatever, though the conveyance was without specific description of such submerged land. Such submerged land passed to claimant as an appurtenance to the upland. (Archibald v. N. Y. C. & H. R. R. R. Co., 157 N. Y. 574; Smith v. Bartlett, 180 N. Y. 360; Stewart v. Turney, 237 N. Y. 117; White v. Knickerbocker Ice Co., 254 N. Y. 152; Ousby v. Jones, 73 N. Y. 621; Fulton L., H. & P. Co. v. State of New York, 62 Misc. Rep. 189; 200 N. Y. 400; Grandin v. Hernandez, 29 Hun, 399; Bernstein v. Nealis, 144 N. Y. 347.) The upland of the claimant between the high-water line of 1893 and the taking line in this proceeding having been submerged by process of avulsion, title thereto remained in the claimant and it is entitled to compensation for the taking thereof. (Matter of City of Buffalo, 206 N. Y. 319; Mulry v. Norton, 100 N. Y. 424; City of Chicago v. Ward, 169 Ill. 392; Philadelphia Co. v. Stimson, 223 U. S. 605; St. Louis v. Rutz, 138 U. S. 226; Missouri v. Nebraska, 196 U. S. 23; Nebraska v. Iowa, 143 U. S. 359; Schwartzstein v. B. B. Bathing Park, Inc., 203 App. Div. 700.)

      Arthur J. W. Hilly, Corporation Counsel {Patrick S. Mac Dwyer of counsel), for respondent.
    Appellant’s deed does not expressly or by implication include the area of the ocean claimed herein. (Stillman v. Burfeind, 21 App. Div. 13; Walton v. Tifft, 14 Barb. 216; Archibald
      v. N. Y. C. & H. R. R. R. Co., 157 N. Y. 574; Smith v. Bartlett, 180 N. Y. 360; Stewart v. Turney, 237 N. Y. 117; White v. Knickerbocker Ice Co., 254 N. Y. 152; Matter of City of New York [Lawrence Ave.], 182 App. Div. 739; Brown v. Heard, 85 Me. 294; Lovejoy v. Lovett, 124 Mass. 270; Stearns v. Rice, 31 Mass. 411; Thayer v. Finton, 108 N. Y. 394; Green v. Horn, 128 App. Div. 686; Wendell v. People, 8 Wend. 183; Robinson v. Kime, 70 N. Y. 147; People ex rel. Burnham v. Jones, 112 N. Y. 597; Kreshover v. Berger, 135 App. Div. 27; McCarter v. Crawford, 245 N. Y. 43.) The area claimed by the appellant being part and parcel of the ocean when included in the public beach herein, the fact that its submergence was caused by avulsion does not entitle the appellant to claim title thereto in this proceeding. (Mulry v. Norton, 100 N. Y. 424; Murphy v. Norton, 61 How. Pr. 197; Van Deventer v. Lott, 172 Fed. Rep. 574; Stockley v. Cissna, 119 Fed. Rep. 812; Keel v. Sutton, 142 Tenn. 341; People v. Steeplechase Park Co., 82 Misc. Rep. 247; Philadelphia Co. v. Stimson, 223 U. S. 605; Nebraska v. Iowa, 143 U. S. 359; Matter of City of Buffalo, 206 N. Y. 319; Schwartzstein v. B. B. Bathing Park, Inc., 203 App. Div. 700.)
   Hubbs, J.

West Tenth Street Realty Corporation is the owner of a parcel of land bounded on the south by the Atlantic ocean. The city of New York instituted proceedings to acquire title for a public beach along the Coney Island ocean front. Claimant’s land has a frontage on the ocean of 150 feet and is situate immediately east of the Feltman land involved in Matter of City of New York (Feltman) (256 N. Y. 156).

All the questions involved on this appeal except one have been resolved in favor of the claimant in an opinion by Judge O’Brien in Matter of City of New York (Realty Associates) (256 N. Y. 217), decided herewith. In that case the claimant was the owner of upland and land under water.

The deed to claimant of the land involved on this appeal bounds the same on the south by the Atlantic ocean. The question as to whether such description covers land submerged by avulsion prior to the date of claimant’s deed is not passed upon in the opinion of Judge O’Brien. That is the only surviving question. The Special Term decided that the claimant was not the owner of such submerged land. The Appellate Division held that the decision “ was correct upon the basis that the land for which claim is made was lost and not claimed or regained prior to this proceeding.”

Claimant proved title running back to the town of Gravesend. The title of the town of Gravesend extended to the high-water mark of the ocean. (Matter of City of New York [Feltman], supra.)

Claimant’s title originates in two proceedings in eminent domain brought by the New York and Sea Beach Railroad Company in 1877 and 1880 respectively to acquire title “ to land now of the Town of Gravesend.” Part of the land involved was described as extending " to the Atlantic Ocean; ” the other part “ to Atlantic Ocean, thence westerly along the high-water line of said ocean.”

In a mortgage executed by the railroad company on September 1st, 1885, the land was conveyed by an omnibus description which covered all its real and personal property and all riparian and other rights whatsoever with the appurtenances. That mortgage was foreclosed, and the referee’s deed followed the description in the condemnation orders “with the appurtenances.” The railroad company conveyed the land in question to the Sea Beach Land Company by a description which read in part “west to the Atlantic Ocean, thence easterly along the Atlantic Ocean.” The Sea Beach Land Company conveyed to claimant by the same description, i. e., to the Atlantic ocean, thence easterly along the Atlantic ocean.

In June, 1893, the high-water line of the ocean was about 1,350 feet south of Surf avenue and about 450 feet south of the taking line. The land between the taking line and the high-water line in 1893 was submerged by avulsion. The premises in question consist of the submerged land between the high-water line as it was in 1893 and at the time of taking, consisting of a parcel about 150 feet wide and 450 feet long.

The high-water line at the date of claimant’s deed was substantially the same as the taking line. If the claimant is the owner of the submerged land in question, it is by implication as the description in its deed only extends to high-water mark, which at the time was located at about the taking line. The position of the city is that the rights of the plaintiff are limited by the strict and literal language of the deed, and that its title extends only to the high-water line as it existed at the date of its deed.

The presumption is that a grantor does not intend to retain the fee of the soil under water contiguous to the land conveyed but such presumption may be overcome by the use of words in describing the premises conveyed which clearly indicate an intent not to convey the soil under the water.

It will, however, be presumed in the absence of a clearly expressed intent to the contrary that a grantor does not intend to retain the fee of the soil under the water where he has conveyed all of his interest in the upland adjoining it. It will be presumed that he intended to convey all he owned. (Johnson v. Grenell, 188 N. Y. 407; Smith v. Bartlett, 180 N. Y. 360; Archibald v. N. Y. C. & H. R. R. R. Co., 157 N. Y. 574.)

In Stewart v. Turney (237 N. Y. 117, 121) it is said: In deeds from ah individual owning to the center of a highway or a non-tidal stream or a lake or pond of land said to be bounded by such highway, stream or lake or simply of a tract with reference to a map showing the tract to be so bounded, the grantee takes title to the center of the highway or to the thread of the stream or lake. A presumption founded originally upon the assumed intent of the parties it has now become a rule of property. If the grantor desires to 'retain his title to the land in the highway or underneath the water the presumption must be negatived by express words or by such a description as clearly excludes it from the land conveyed.”

The principle stated applies to land bounded by waters where the tide ebbs and flows. (Smith v. Bartlett, supra; Matter of City of New York [West Farms Road], 161 App. Div. 530; affd., 212 N. Y. 325.)

The presumption that claimant’s grantor intended to convey all the land which it owned including land under water is strengthened by the fact that its deed to claimant recited “ being the same premises conveyed to the party of the first part by deed dated September 1st, 1896, and recorded in the office of the Register of the County of Kings on December 1st, 1896, in Liber 3 of Conveyances, page 185, Section 21.” (Ousby v. Jones, 73 N. Y. 621; Berstein v. Nealis, 144 N. Y. 347; Butler v. Clark, 66 Hun, 444.)

The conclusion which we have reached that the claimant is the owner of the submerged land to the line of high water as it existed in 1893 is not affected by the clause in the deed to it, subject, also, to state of facts shown on survey made by Charles S. Yoorhies, dated Dec. 15th, 1919.” That survey was not introduced in evidence, and there is nothing in evidence to indicate in any way that claimant’s deed conveyed less land than indicated by the description.

The order of the Appellate Division should be reversed, with costs in all courts, and the matter remitted to the Special Term to proceed in accordance with this opinion.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Order reversed, etc.


author: Crane, J.

text:
    Samuel Sandberg et al., Respondents, v. Margold Realty Corporation, Appellant.
    (Submitted April 15, 1931;
    decided May 12, 1931.)

      H. Louis Jacobson for appellant.
    The specific description of the dimensions upon the filed map, incorporated in the contract, is controlling. (Champion v. White, 5 Cow. 509; Mann v. Pearson, 2 Johns. 37.) The deed tendered to the purchasers was a substantial and fair compliance with the description in the contract. (Von

      Bargen v. Ginsberg, 218 App. Div. 545; 245 N. Y. 647; Siebel v. Cohen, 54 N. Y. Super. Ct. 436; Raben v. Risnikoff, 95 App. Div. 68; Floeting v. Horowitz, 128 App. Div. 492; Urbach v. Pye, 124 App. Div. 587; Friedman v. Baron, 223 App. Div. 851; 250 N. Y. 552.)

      Lewis Epstein and Saul B. Bradie for respondents.
    The actual dimensions, area and shape of the plot offered in the deed tendered by defendant to plaintiffs are not a compliance with the contract. (Boucher v. Stewart, 136 App. Div. 844; Von Bargen v. Ginsberg, 218 App. Div. 545; 245 N. Y. 647; Oakes v. DeLancey, 133 N. Y. 227; Watson v. City of New York, 67 App. Div. 573; Raben v. Risnikoff, 95 App. Div. 68; Floeting v. Horowitz, 120 App. Div. 492; Urbach v. Pye, 124 App. Div. 587.) The express representation contained in the contract is binding on defendant and qualifies the reference in the contract to the filed map. (Von Bargen v. Ginsberg, 218 App. Div. 545.)
   Crane, J.

The variances in the dimensions of lots in The Bronx purchased by the plaintiffs from the defendant "have resulted in a judgment in this case giving back to the plaintiffs their $1,000 first payment on the purchase price.

The contract of sale described these vacant lots by reference to a map on which they were delineated and also by approximate measurements. The wording is:

Witnesseth, that the seller agrees to sell and com vey, and the purchasers agree to purchase all that certain plot, piece or parcel of land, situated, lying and being in the Borough of Bronx, County of Bronx, City and State of New York, known and designated as Lots No. 879 and 880, 881 and 882, on a map entitled ‘ Map of 1669 lots held by the Farmers Loan and Trust Co. as trustee under trust created by William Waldorf Astor, situated at Westchester, Tremont, Morris Park, Metcalf and St. Lawrence Aves., East 172nd Street, East 174th Street, East 178th Street and East 180th Street, and intersecting ' streets and avenues, Borough of Bronx, City of New York/ made by George C. Hollerith the 22nd day of May, 1922, and filed in the office of the Register of Bronx County on the 14th day of June, 1922, Section 1 of said map being filed as Map No. 588, Section 2 of said Map being filed as Map No. 589, and Section 3 of said Map being filed as Map No. 590.

“ Said premises being the northeast corner of Westchester & Rosedale Ave., and being approximately 100' by 100'.

The purchase price is fifty-five thousand dollars ($55,000.00), payable as follows:

$1,000.00 on the signing of this contract, the receipt whereof is hereby acknowledged. * * * ”

The other terms may be omitted.

A reference to this map filed in the Register’s office of Bronx county as late as March 22,1922, would have shown and probably did show the exact size and shape of lots Nos. 879, 880, 881 and 882 which the plaintiff undertook to buy. There were no buildings or structures on the property or fences which might mislead one in looking at the physical situation. It was vacant open land. The fact that in giving the measurements of “ 100' by 100' ” in the contract the figures were not used with exactness indicating that a square of that dimension was to be conveyed but that the size was an approximation suggested to the purchaser that there would be or might be variances. We start the consideration of this case with the understanding between the parties that the property might not be an exact square as one side might be shorter than another. A variance, therefore, in dimensions is not vital or controlling. The map showed that this plot of ground is on the corner of Rosedale avenue and Westchester avenue in The Bronx. On Rosedale avenue, or the westerly side, the lot is 106.91 feet; on Westchester avenue, or the south, it is 101.78 feet; on the north, which does not face a street, it is 100 feet; and on the east, which does not face a street, it is 87.98 feet. The lot, therefore, is not a square, 100 feet by 100 feet, but has more than 100 feet on the street sides, and is short of 100 feet on the east. The deficiency in square feet amounts to 255§ square feet.

If the parties in making this contract for vacant land intended to convey a square plot “ 100' by 100' ” the lengthy paragraph referring to the map was unnecessary, and the doubt as to measurements would not have been expressed by the word approximately.” The uncertainty as to the exact measurements shows that the reference to the map was for a purpose. As the map showed the exact measurements and the particular shape of the lots it is reasonable to assume that the parties were contracting with reference to the map and to measurements which approximated, approached or came near to 100 feet on all sides. On two sides the measurements exceeded 100 feet; on one side the length was 100 feet; while on only one side did the measurement fall to 87.98 feet.

Real estate contracts, like wills, involve different circumstances and conditions and, in most instances, different descriptions. Each case must be judged on its facts; in consequence, prior cases are authority only in so far as they enunciate a principle of law, or deal with similar facts. For instance, in Friedman v. Baron (223 App. Div. 851; affd. in this court, 250 N. Y. 552) and Von Bargen v. Ginsberg (218 App. Div. 545; affd. in this court, 245 N. Y. 647) there is no reference in the contract to a sale of lots, shaped and measured on a map recently filed.

The tender of a deed conveying the property according ■to the map was in our judgment a substantial compliance with all the terms and conditions of the contract of sale. The plaintiff must be held bound thereby.

The judgment of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in the Appellate Division and in this^court.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


author: Pound, J.

text:
    Frank Blum, Appellant, v. The Nassau Purchasing and Building Corporation et al., Defendants, and Charles Kemlein, Respondent.
    (Submitted April 15, 1931;
    decided May 12, 1931.)

      Eugene L. Flanagan for appellant.
    The descriptions in the tax deeds and proceedings prior thereto as offered in evidence were not only reasonably certain but absolutely certain as to what premises were conveyed. (Hennepin Imp. Co. v. Schuster, 66 Misc. Rep. 634; Darrow v. Terry, 202 App. Div. 733; Staffutti v. Sexton, 202 App. Div. 735; 235 N. Y. 610; People ex rel. National Bank v. Metz, 141 App. Div. 600.) The map title at the head of the page of assessment rolls and other proceedings prior to the tax deed is all that is necessary and such title is not necessary after each lot entry on the page nor need there be ditto marks. (McCoun v. Pierpont, 232 N. Y. 66.)

      Percy D. Stoddart for respondent.
    The description in the assessment roll upon which the tax deeds are -based, and the descriptions in the tax deeds, are vague, indefinite and void, and such being the situation respondent cannot be deprived of his title. (McCoun v. Pierpont, 232 N. Y. 66; People ex rel. National Park Bank v. Metz, 141 App. Div. 600; Lawton v. City of New Rochelle, 114 App. Div. 884; Rhinehart v. O’Connor, 173 App. Div. 942; Rupert v. Village of North Pelham, 139 App. Div. 302; Tolman v. White, 2 N. Y. 66; Stout v. Masten, 139 U. S. 151; Hill v. Mowry, 6 Gray, 551; Matter of N. Y. C. & H. R. R. R. Co., 90 N. Y. 342.)
   Pound, J.

This action, in form one in partition, is in substance one to test the validity of certain tax deeds whereby plaintiff and defendant Nassau Purchasing and Building Corporation claim title to the real property in question.

The correct description of the property to which defendant Kemlein acquired title as set forth in his deed is as follows: “All that certain tract, piece or parcel of land, situate, lying and being at Floral Park, Town of Hemp-stead in the County of Nassau and State of New York, known and designated on a certain map entitled 1 Map of Floral Park Homes, situate in Floral Park, Town of Hempstead, Nassau County, New York,’ belonging to the House and Home Company, surveyed by C. W. Darling, C. E., and City Surveyor and filed December 12, 1905 in the office of the County Clerk of Nassau County, being lot known as and by the number thirty-five (35).”

The description in the tax deeds is as follows: “All that certain lot, piece or parcel of land, situate in the Town of Hempstead, County of Nassau and State of New York, described as follows, viz: District 22, Map of Floral Park Homes, Lot 35.”

The description on the assessment rolls is as follows: At the top of the page appear the words, “ Map of Floral Park Homes, situate at Floral Park, Town of Hempstead, Nassau County, N. Y., Property of the House and Home Co., Chas. W. Darling, C. E., Mineóla and Babylon, N. Y.” On the twenty-ninth line from the top of the page appears a blank fine, then follow the figures 35.

Objection is made (a) that the name of the map is incorrectly set forth at the top of the page; (b) that there is nothing in the way of ditto marks or name to connect lot 35 either with the map or the individual owner.

Tax Law, section 55-a, provides as follows: “ § 55-a. Errors in assessment-rolls. An error in the description of a parcel or portion of real property shall not invalidate the assessment against such parcel or portion, if such description is sufficiently accurate to identify the parcel or portion. * * *.” (Cons. Laws, ch. 60.)

“ That is the standard to be applied to-day. If support for one less liberal may be found in early cases, the authority of the cases yields to the mandate of the statute. * * *. The verdict of common sense * * * is the verdict also of the law.” (Cabdozo, J., in McCoun v. Pierpont, 232 N. Y. 66, 69, 70.) What then is the verdict of common sense in this controversy?

The map is properly designated on the assessment rolls and the tax deeds as Map of Floral Park Homes ” but it is not identified as having been filed in the office of the County Clerk of Nassau county. There is only one map of Floral Park Homes and the merest novice in title searching would look for it first in Nassau County Clerk’s office which is the proper place to file such maps. Thereon he would find lot 35 and his curiosity as to the meaning of the assessment would be gratified. The owner could not be misled for the description is sufficiently accurate ” to identify the land as assessed with the land described in his deed.

The lack of ditto marks would neither deceive nor mislead a diligent taxpayer, anxious, in good faith, to identify his land.” (McCoun v. Pierpont, supra.) He would understand that the rolls referred to numbers on the Floral Park Homes map until something indicated the contrary. We are not concerned with those who to escape taxation split hairs and quibble over fair meanings.

The cases on the authority of which the motion to confirm the referee’s report was denied must yield to the reasoning and decision in the McCoun case which places its disapproval on the rejection of tax titles for errors in description too trifling to justify a refusal to enforce the tax levy.

The judgment of the Appellate Division should be reversed, the referee’s report confirmed and judgment of partition granted thereon, with costs in all courts.

Cabdozo, Ch. J., Cbane, Lehman, Kellogg, O’Bbien and Hubbs, JJ., concur.

Judgment accordingly.


author:
      Lehman, J.
      Crane, J. Kellogg, J.

text:
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Widening of Allen Street in the Borough of Manhattan. David J. Ershowsky, Respondent.
    (Argued February 9, 1931;
    decided May 12, 1931.)

      Arthur J. W. Hilly, Corporation Counsel (Joel J. Sguier and Edward A. Weingarten of counsel), for appellant.
    The city of New York in a condemnation proceeding is authorized to acquire real property only. (Matter of People v. Johnson & Co., 219 App. Div. 285; 245 N. Y. 627; 275 U. S. 571; Matter of Briggs Ave., 196 N. Y. 255; Matter of Mayor of New York, 39 App. Div. 589; Matter of American Bank Note Co., 63 Hun, 506; Matter of Dept. of Public Parks, 53 Hun, 280; Matter of N. Y. C. & H. R. R. R. Co. v. Pierce, 35 Hun, 306; Matter of Wilcox [4th Ave. Subway], 213 N. Y. 218; Matter of City of New York [Inwood Hill Park], 197 App. Div. 431.) Articles inherently personal property do not become real property by virtue of being affixed to a building by a tenant for use in connection with his trade or business carried on in the leased premises. (Miller v. Plumb, 6 Cow. 665; Raymond v. White, 7 Cow. 319; Matter of Olympic Theatre, 2 Bowne, 279; Jackson v. State of New York, 213 N. Y. 34; McRae v. Central Nat. Bank, 66 N. Y. 489; Tifft v. Horton, 53 N. Y. 377; Smusch v. Kohn, 22 Misc. Rep. 344; Ombany v. Jones, 19 N. Y. 234; Herkimer County L. & P. Co. v. Johnson, 37 App. Div. 257; Potter v. Cromwell, 40 N. Y. 287; Lewis v. O. N. & P. Co., 125 N. Y. 341; Madfes v. Beverly Development Co., 251 N. Y. 14.) A tenant in possession of premises at the time title vested in the city under a lease having a condemnation clause has no unexpired term during which the trade fixtures may be used in connection with his leasehold and consequently he is not entitled to compensation for loss of use of his trade fixtures. (Matter of Mayor, 168 N. Y. 254; Matter of City of New York, 124 App. Div. 465; 192 N. Y. 539; Matter of N. Y., W. S. & Buffalo

      Ry. Co., 35 Hun, 63; Jackson v. State of New York, 213 N. Y. 34; Matter of City of New York [North River Waterfront], 118 App. Div. 865; 189 N. Y. 508; Banner Milling Co. v. State of New York, 117 Misc. Rep. 33; Matter of City of New York [Delancey Street], 120 App. Div. 700; Pause v. City of Atlanta, 98 Ga. 92; Matter of Starr Street, 73 Misc. Rep. 380; Emery v. Boston Terminal Co., 178 Mass. 172; Matter of City of New York [Blackwell’s Island Bridge], 198 N. Y. 84; People v. Stephens, 71 N. Y. 527.)

      Henry Herz for respondent.
    The lessee has a right against the city to recover for trade fixtures notwithstanding the acceleration of expiration of the lease under the condemnation clause therein. (Matter of Waterfront on North River, 219 App. Div. 27; Matter of City of New York [Pier 39, East River], 168 N. Y. 254; Matter of City of New York [Piers Old Nos. 19 & 30], 117 App. Div. 553; Musante v. State, 73 Misc. Rep. 534; Poillon v. Gerry, 179 N. Y. 14; Jackson v. State of New York, 213 N. Y. 34.) The taking deprived respondent of the unexpired, term and, by reason of the condemnation clause, of any claim for leasehold damages resulting therefrom to be carved out of the award to be made to the landlord, but it did not deprive him of a claim against the city for damages to trade fixtures installed by him as tenant in the demised premises caused by the acquisition thereof under power of eminent domain. (Matter of Daly, 29 App. Div. 286; Matter of City of New York [Delancey Street], 120 App. Div. 700; Matter of City of New York [Seventh Avenue], 196 App. Div. 451; Matter of Mayor of New York, 168 N. Y. 254; Matter of City of New York [North River Waterfront], 118 App. Div. 865; 189 N. Y. 508; Andrews v. D. B. Co., 132 N. Y. 348; Matter of City of New York, 193 N. Y. 117; Matter of City of New York, 192 N. Y. 295; Matter of Willcox, 142 App. Div. 680; Matter of City of New York [Rockaway Boulevard], 201 App. Div. 862.)
   Lehman, J.

Pursuant to resolution of the Board of Estimate and Apportionment adopted May 27th, 1926, the city of New York instituted proceedings to acquire title in fee to real property required for the widening of Allen street. Title to this real property became vested in the city on December 10th, 1926 (Greater New York Charter, § 976). Compensation or damages must be awarded and paid to the owner of the real property taken (§ 970); and an owner includes any person having an estate, interest or easement in the real property to be acquired or a hen, charge or encumbrance thereon ” (§ 969, subd. 3).

At the time the proceedings were instituted, a tenant, David J. Ershowsky, occupied the premises designated on the damage map as parcels Nos. 41 and 42. He used the premises to conduct a butcher trade or business. As between the landlord and himself he had the right to remove the fixtures at the termination of the lease. Except for the condemnation proceedings, the term of the lease would have expired on May 1st, 1927, a few months after the date when title to the real property vested in the city. The lease contained a provision for its earlier termination. If the whole or a substantial part of the premises hereby leased shall be taken by the City, County, State or Federal authority for any public purpose, then the term of this lease shall cease from the day when possession of the whole or part so taken shall be acquired for such public purpose, and the rent shall be paid up to that day.” An award has been made to the owner for the value of the leased property, and an award has been made to the tenant as compensation for the fixtures annexed to the property.

Upon this appeal the only question presented is whether the tenant’s fixtures are real property ” within the meaning of the statute. At the hearing the city stipulated that without waiving any objection to the lessee’s right to recover in this proceeding compensation for the fixtures installed in the building on Parcels Damage Nos. 41 and 42, the City agrees that if the Court should hold that the lessee is entitled to compensation for the fixtures installed therein, the amount of such compensation shall be the sum of $9,175.” We are not concerned with the measure of damages. We must decide only whether the fixtures are so annexed to the land and building that they have become part of them and have been taken by the city.

No testimony was offered at the hearing which would show how these fixtures were annexed to the building, or, indeed, which describes them. It is evident that the court and both parties proceeded upon the assumption that implicit in the stipulation was a concession that the fixtures ” were so annexed to the real property that, while by agreement between landlord and tenant they remained the personal property of the tenant, they would have become part of the real property if they had been installed permanently by the owner of the fee. Our consideration of the record must proceed upon the same assumption.

We have said, in Jackson v. State of New York (213 N. Y. 34), an appropriation of land, unless qualified when made, is an appropriation of all that is annexed to the land, whether classified as buildings or as fixtures, and so it has frequently been held. (Matter of City of N. Y., 118 App. Div. 865; affd., 189 N. Y. 508; Matter of Mayor, etc., of N. Y., 39 App. Div. 589; Phipps v. State of N. Y., 69 Misc. Rep. 295; Allen v. City of Boston, 137 Mass. 319.)” In that case, it is true, the court was dealing with fixtures which had been annexed to the land by the owner of the fee; but the language of the opinion is broad enough to cover fixtures annexed by a tenant and which remained the personal property of the tenant. That the court did not intend that the rule should be restricted to annexations which are the property of the owner of the fee is made evident by its citation of authority for the rule, for in two of the cases cited the fixtures had been annexed by the tenants. In Matter of City of New York (118 App. Div. 865; affd. by this court, 189 N. Y. 508) this court passed upon the question directly, and, though no opinion was written here, the court decided that the fixtures of tenants if annexed to the land or building become real property ” which the city takes in condemnation proceedings and for which compensation must be awarded.

It is, indeed, conceded by the city that it has become the accepted rule that an award must be made to a tenant for fixtures or structures annexed to the real property, though these are the personal property of the tenant, whenever the city in taking the real property destroys the leasehold interest of the tenant. (See Matter of Willcox, 165 App. Div. 197; Matter of City of New York, 192 N. Y. 295.) The city does not now ask us to overturn that rule. It urges only that the rule does not apply in any case where, at the time of the appropriation, the term of the lease has expired, or, as in this case, where the lease provides that it shall come to an end when possession of the property is acquired by a public authority for a public purpose. In such case, it is said by the appellant, the fixtures cannot be appurtenant to the fee which is appropriated, for they are not the property of the owner of the fee; they cannot be appurtenant to any leasehold appropriated, for no leasehold survives the appropriation of the fee. From these premises the deduction is drawn that the tenant’s fixtures must be personal property and are not taken by the city.

The distinction which we are asked to draw ignores the nature of what the city takes by condemnation and its consequent obligation to pay compensation. The city takes the real property condemned, as it then exists. What is so annexed as to become a part of the real property taken is acquired by the city. For the enforced premature removal of property which is excluded from the taking, no consequential damages may be awarded. (Jackson v. State, supra; Banner Milling Co. v. State of New York, 240 N. Y. 533; Matter of N. Y., W. S. & B. Ry. Co., 35 Hun, 633.) The city pays for what it . takes and nothing else. By such taking it extinguishes all existing rights and interests in the property taken. “ Where the whole of any lot or parcel of real property, under lease or other contract, shall be taken for any of the purposes aforesaid, by virtue of this title, all the covenants, contracts and engagements between landlord and tenant or any other contracting parties, respecting the same, or any part thereof, shall, upon the vesting of the title in the City of New York, cease and determine and be absolutely discharged.” (Greater New York Charter, § 979.) Even if the lease by the landlord to the tenant in this case had not contained a clause expressly providing that the term of the lease shall cease ” when possession of the property is taken by the city, nevertheless by virtue of the fiat of the sovereign, the lease would cease and determine and be absolutely discharged ” upon the vesting of title which, indeed, preceded the actual taking of possession. No leasehold can survive the appropriation of the land itself, and where the city takes annexations to leased real property, it takes them, not because they are owned by either landlord or tenant or are appurtenant to some interest in the property, but because they are part of the real property. The public right is exercised upon the land itself, without regard to subdivisions of interest by which the subject is affected through the various contracts of individual owners.” (Edmands v. City of Boston, 108 Mass. 535.)

In fixing awards in condemnation proceedings, the value of what has been taken must be determined and then that value must be divided among those whose interests are extinguished by the taking. Those interests may be defined by contract of the parties interested and in the same way the parties may determine by agreement how compensation shall be divided upon the extinguishment of those interests by the sovereign. In this ease, the clause of the lease which provided for its termination upon the vesting of title to the land in the city evidences an agreement between landlord and tenant that the tenant shall receive out of the award no compensation for his leasehold interest. Even so, the tenant retains the right to compensation for his interest in any annexations to the real property which but for the fact that the real property has been taken, he would have had the right to remove at the end of his lease. (Matter of Mayor of City of New York, 168 N. Y. 254; Poillon v. Gerry, 179 N. Y. 14.) Towards the sovereign exercising the power of eminent domain, the agreement of the parties could have no effect and was not intended to have effect. What the sovereign takes in the exercise of its power, it determines by its own decree. By statute the sovereign has decreed that all that constitutes real property, as defined by the statute, is appropriated by condemnation proceedings, and that all interests in the real property as so defined are extinguished by the taking. The agreement of the parties cannot change that definition. Our problem is to determine whether the tenant’s fixtures constitute real property within that definition.

In many jurisdictions the appropriation of real propperty may be qualified by the exclusion of structures upon the land. Then the problem is different. In such case compensation is paid for what is taken and, sometimes, consequential damages, caused by the taking, to property excluded therefrom. Then payment may be restricted to the difference between the value of the detached articles and the value added to the building when they were used in connection with it.” (Jackson v. State, supra.) In such jurisdictions the correct rule to be applied may be that as to fixtures of a tenant not taken the increased value of the premises for rent in consequence of the putting in of such fixtures and improvements may properly be considered in computing the damages to the leasehold estate.” (Pause v. City of Atlanta, 98 Ga. 92, 105.) Of course, where a tenant receives damages for the destruction of the value of the leasehold estate as increased by the presence of the fixtures and still retains his property in the fixtures, he has full compensation for any injury he has suffered. The decisions like Allen v. City of Boston (137 Mass. 319), Emery v. Boston Terminal Co. (178 Mass. 172), in Massachusetts, must be read in the light of the statutes in force in that State (Massachusetts General Laws, 1921, ch. 79, § 13; Massachusetts Public Statutes, 1882, ch. 49, § 9), which permit the exclusion of structures, fixtures and even trees from the appropriation of the land to which they are annexed, and authorize the award of consequential damages when excluded. So read, these cases have no relevancy to the question presented here, where the appropriation of the real property has been subject to no qualifications.

The real property taken includes all lands and improvements * * * and every estate, interest, * * * privilege, easement and franchise, * * * including terms for years and liens by way of judgment, mortgage or otherwise.” (Greater New York Charter, § 969, subd. 4.) Whatever is land within the general and legal meaning of the term, is to be estimated in ascertaining the compensation.” (Schuchardt v. Mayor, 53 N. Y. 202.) Question as to the ownership of, or succession to, structures or fixtures annexed to the land has arisen in many forms between landlord and tenant, vendor and vendee, heirs and personal representatives. In each case the problem presented is the proper division, if any, which is to be made between the owner of the real property, his assigns, privies or successors, who base their claim of ownership upon the assertion that the fixtures or structures have become a part of the real property, and other parties who base their claim of ownership upon the assertion either that the structures or fixtures have never been so annexed to the realty as to lose their quality of personal property or that they have been so severed, actually or constructively, as to gain or regain the quality of personal property. In each case the underlying question may be formulated: Do the structures or fixtures constitute real or personal property between rival claimants of title? Varying factors have dictated the answers given by the courts when they were called upon to decide the question between rival claimants of title. What may constitute personal property where the contest is between landlord and tenant may be real property where the claimants stand in other relation. The nature of the structure or fixture and the mode of its annexation may be the decisive factor in some cases; not in all. Judicial definitions of what constitutes real property or personal property must often be limited to the problem presented in the particular case which called- for formulation of the definition. Here the contest is not between rival claimants of the property. The city has taken the real property in the condition in which it was at the time of the appropriation. It may have been the intention of these owners that annexations to the realty should not become part of the real property. As between the parties the courts will, at least at times, give effect to that intention; but when the city takes the property it takes the property itself with all its improvements,” and extinguishes the title of all who had any interest therein. That rule constitutes the foundation of the decisions that the city must pay for fixtures annexed to the real property by a tenant, though as between landlord and tenant the annexations remained the personal property of the tenant, severable by him at least before the expiration of his term. (See Matter of City of New York, 118 App. Div. 865; affd., 189 N. Y. 508; Phipps v. State of New York, 69 Misc. Rep. 295, both cited with approval in Jackson v. State, supra; Nichols on Eminent Domain, § 234.)

Distinction must, of course, be made between chattels which have such a determinate character as movables that they remain personal property, after their annexation to real estate, independently of any agreement between the owner of the chattels and the owner of the realty which so provides,” and “ the class of movables which, after attachment, continued to be personal property, or became real estate, accordingly as the owner of the chattels and the owner of the real estate might have agreed.” (Madfes v. Beverly Development Corp., 251 N. Y. 12.) Though both are sometimes referred to as “ fixtures,” articles which are in their nature, mere furniture, and, therefore, chattels, and not appurtenances to the building ” cannot constitute a part of the realty. (McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38.) The term fixtures ” as used in this opinion is confined to articles so affixed to the realty that they would have become part of the realty if they had been installed permanently by the owner of the fee. It excludes goods affixed to realty which, in the absence of an agreement that their original character should be retained, would not have become part thereof (Madfes v. Beverly Development Corp., supra.)

Though agreement between landlord and tenant may determine that a tenant’s title to “ fixtures ” after they are affixed to the realty remains in the tenant and shall not become merged in the title to the real estate, the fixtures do not even as between the parties to the agreement remain in full sense personal property, for it has been held that that property in tenant’s fixtures which are not removed at the expiration of the term of the lease or upon surrender of possession of the land to which they are attached, vests in the landlord. (Talbot v. Cruger, 151 N. Y. 117.) “ On the whole, the tenor of the authorities is, that, during the period within which the tenant has the right of removal, he has an actual interest in the things affixed by him or purchased by him as fixtures; an interest which is neither an interest in chattels nor an interest in land, but it is a chattel interest in things for the time being affixed to land.” (Tyler on Fixtures, p. 165.)

The courts, recognizing that by agreement title to and property in articles affixed to the realty may at times be retained by the original owner, have sustained actions brought for interference with or deprivation of such title and property. For that purpose the courts disregard the annexation to the land and treat the articles as chattels. For wrongful deprivation of his property in such articles, the owner may bring an action for conversion. Treating the articles, as between the parties to such actions, as chattels, the courts have at times referred to the articles as “ chattels.” The courts have never by the use of the word “ chattel ” intended to indicate that in all circumstances and as between all parties, fixtures annexed to realty without intention that they should become a permanent part thereof, are to be treated as chattels.

“An article, which remains all the time in the same position and condition, may turn out to be real property as between some claimants, and, as between others, personalty.” (Reeves on Real Property, § 10.) An interesting example is to be found in Mott v. Palmer (1 N. Y. 564). There the defendant conveyed a farm to the plaintiff with warranty of seizin. A fence had been erected upon the farm which would have passed to the plaintiff with the land if- it belonged to the defendant. In fact, the fence had been affixed to the land by an occupant upon an agreement with the defendant that the fence might be removed by the occupant. Consequently the plaintiff, who refused to permit its removal, had been compelled to pay damages to the owner of the fence in an action for conversion. He was then permitted to recover the amount of these damages in an action against the defendant for breach of his warranty of seizin because as between grantor and grantee of the land the fence was part of the land as described in the deed." The agreement between the occupant and the owner resulted in the retention of title to the fence by the occupant, though affixed to the land. Nevertheless that agreement could not affect the fact that by annexation to the land the fence became part of the land as described in the deed. So here the agreement of the landlord and tenant resulted in retention of title to the fixtures in the tenant. It cannot affect the description of real estate contained in the statute, and within that description the fixtures are part of the real estate which the city has taken. So long as they constitute “ improvements ” to the real estate, it is immaterial whether for other purposes the courts of this jurisdiction would regard them as chattels.

That result is in accordance with the decisions of the courts of this State, and the uniform practice in condemnation proceedings. The fixtures of the tenant were annexed to the land, and though the personal property of the tenant as between himself and bis landlord, they constitute “ improvements ” to the land, within the meaning of the statute, at least so long as they could be used in connection with the land. At the time of the appropriation of the land, the improvements were still annexed to the land and could be used by the tenant in connection with the land. By the force of the statute the tenant’s rights under the lease ceased when the city took title to the land; by agreement of the parties the tenant’s right to compensation for the value of the leasehold did not survive the taking. That agreement did not change the nature of the annexations or the title of the tenant to the annexations. So long as they were not severed, the annexations could be used in connection with the real property, enhanced the value of the real property and were part of the real property taken by the city. The city appropriated the real property in the condition in which it was at the time it took title, and then the fixtures were part of the real property and enhanced its value. Perhaps severance at the expiration of the tenant’s term, five months after the date when the city took title to the real property, might have destroyed some of the value of the property; perhaps the parties might have chosen to preserve that value either by renewal of the lease or by transfer of title to the fixtures from the tenant to the owner of the fee. Choice lay with the tenant and landlord, and how that choice would have been exercised rests in speculation which does not concern the courts in this jurisdiction. As we have pointed out, in some jurisdictions appropriation of the real property may be qualified by excepting fixtures which the State does not desire to retain. Here no such qualification was made. The city has taken the real property together with the annexations to this property. It is immaterial that if the property had not been taken, some of that value might have been destroyed a few months thereafter by the severance of the annexation. The taking of the property has destroyed any right to severance which the tenant might otherwise have had at the expiration of the lease. The physical condition of the property is not altered by the circumstance that title to the annexations was in the tenant while title to the land was in the landlord, nor does such division of title affect the value of the whole. The taking itself destroys all outstanding titles and renders severance impossible except by the will of the taker. The city must pay the value of what it takes. To the extent that the value of the real property as a whole is enhanced by the fixtures annexed thereto, the value of the fixtures must be included in what the city pays, and the tenant is entitled to part of the award, not because the fixtures added to the value of the leasehold, but because they belonged to him and their value enters into the value of what the city has taken.

The order should be affirmed, with costs.

Crane, J.

(dissenting). If a lessee has machinery of a Special or peculiar make which he desires to keep and possess as his own, is it possible for him to make any agreement with the lessor whereby he may take away his property at the termination of the lease and which agreement, if it so specifies, will also preserve to him his property in case of condemnation proceedings? In other words, must a lessee as matter of law in spite of all agreements to the contrary lose his personal property — trade fixtures — when the real estate is condemned? Although, real estate only may be condemned for public use, is the city obliged to take in condemnation proceedings all trade fixtures for which it has no use?

These questions to my mind suggest the strict and narrow conclusion to which the majority opinion leads us. Trade fixtures to my mind do not necessarily as matter of law pass to the city under condemnation proceedings in spite of any and all agreements to the contrary.

For these reasons, I dissent.

Kellogg, J.

(dissenting). In. England, it is the undoubted opinion of text-writers and judges alike, that chattels annexed by a tenant to real estate and removable by him during his term, pending the annexation, are part and parcel of the freehold. According to the former, a tenant’s fixtures are interests in land, defeasible by the act of the tenant who has the right to remove them ” (Brown on Fixtures, p. 83); they are part and parcel of the franlc-tenement or freehold, so long as they continued annexed to it ” (Id.); “ the circumstance of the property being subject to a right of removal, and of being reconverted to a personal chattel, does not affect the nature and condition it has acquired by being incorporated with the realty ” (Ferrard and Hogan [2d ed.], p. 8); tenant’s fixtures which may be removed by the tenant “ have always been considered as part of the land, though sever-able by the tenant.” (Ewell on Fixtures, p. 33.) According to the latter, a tenant may, by severance, reconvert fixtures into chattels, but until they are severed, they are a part of their freehold ” (per Gibbs, Ch. J., in Lee v. Risdon, 7 Taunt. 188); trade or tenant’s fixtures “ have always been considered as part of the land, though sever-able by the tenant ” (per Blackburn, J., in Holland v. Hodgson, L. R. 7 C. P. 328, 336); removable fixtures, while annexed, are not goods and chattels at all, but parcel of the freehold, and as such not recoverable in trover ” (per Parke, B., in Mackintosh v. Trotter, 3 M. & W. 184); They cease to be chattels as long as they remain affixed to the freehold, and they become a part of the freehold ” (per Kindersley, V. C., in Gibson v. Hammersmith & City Ry. Co., 32 L. J. Ch. 337); the interest of the tenant is so far connected with the land that it may be considered a right or interest in it ” which, if the right be granted by the tenant, he may not destroy by his surrender. (Per Williams, J., in London & Westminster Loan & Discount Co. v. Drake, 6 C. B. [N. S.] 798.)

In America the contrary opinion, that removable fixtures remain chattels during the period of annexation, seems to prevail. Thus in Carpenter v. Walker (140 Mass. 416) Mr. Justice Holmes deplored the fact that we had not, in this country, adhered to the English rule that whatever is annexed to the freehold becomes a part of the realty, stating: The right of a tenant to sever chattels which he has attached to the realty might be admitted, and yet the property might be regarded as land until severed, as it seems to be in England.” Nevertheless, it was held that machines annexed to mill property during the period of annexation continued to be chattels. In so holding the court said that it was “ more important to respect decisions upon a question of property than to preserve a simple test.” In Prescott & Booth v. Wells-Fargo & Co. (3 Nev. 82, 90, 91) the court, dealing with fixtures removable by the party affixing them, made this statement concerning the decisions in this and other States of the Union: “ Fixtures of this kind have been held by many Courts in the United States as personal property * * * of the party attaching them to the soil before they become fixtures, and as he has the right to remove them at any time, and again convert them into personal property, some Courts have seen proper to hold them all the time as such. Under this view of the case, Courts in Maine, Massachusetts and New York have sustained actions of traver for fixtures that were never removed or detached from the freehold. (See Russell v. Richards, 1 Fairchild, 429; Ford v. Cobb, 20 N. Y. [6 Smith] 344; Smith v. Benson, 1 Hill, 176; Wells v. Bannister, 4 Mass. 514; Ashmun v. Williams, 8 Pick. 402.) ”

That the rule so stated to prevail in this jurisdiction does so obtain is shown by the New York cases cited, as well as by many others. In Smith v. Benson (supra) it was held that a building affixed to land under an agreement that it might be removed by the person affixing it, and that meanwhile it should remain a chattel, did so remain, and that, if removal were refused, its value might be recovered in an action for conversion. In Ford v. Cobb (supra) it was held that a chattel mortgagee of machines and utensils, annexed by their purchaser, under contract, to lands of which he was the beneficial owner under contract, upon the default of the vendee upon both contracts, was entitled to recover their value in conversion from a subsequent purchaser of the land, who refused to deliver them up. The court said: “All the cases upon this branch of the law of fixtures proceed upon the idea that erections which would clearly be a part of the realty under ordinary circumstances, are personal chattels as regards the rights of a tenant who has put them up for the purpose of trade and manufacture.” In Tifft v. Horton (53 N. Y. 377) it was held that the chattel mortgagee of machines, affixed to real estate by the owner, might recover their value in conversion from a mortgagee of the real estate, who had taken possession and refused to deliver up the machines. The court said that the owner of the fee and the owner of the chattels having agreed that they should remain chattels during annexation, they did so remain. “ The language of the authorities is, that the chattel in such case is personal property, for which an action of trover for the conversion of it may be maintained.” Among other authorities to the same effect are Davis v. Bliss (187 N. Y. 77); De Bevoise v. Maple Ave. Constr. Co. (228 N. Y. 496); East N. Y. El. Co. v. Petmaland Realty Co. (243 N. Y. 477); Madfes v. Beverly Development Corp. (251 N. Y. 12).

It is true that none of these cases relate to tenant’s fixtures. If, however, a private agreement, between others than lessor and lessee, that chattels annexed to real estate shall be detachable and removable therefrom, is sufficient to make them personalty during annexation, then an implied or express agreement between landlord and tenant to the same effect must equally make them chattels. Clearly the action of conversion would not lie unless they were chattels. Moreover, circumstances, such as the relationship of the parties, and the nature and implied purpose of annexation, may be sufficient from which to infer that the right of removal is retained by the person annexing. These circumstances would be known to the grantee of the land. Under the English rule, the grantee, having implied notice, would take subject to the right of removal, even if that right was an interest in real estate. Such could not be the case, if the right were given, not through implication from circumstances known to him, but through a private agreement between the parties of which he is unaware. Yet it is the law in this State, as will be seen from the cases cited, that the agreement, in such a case, will prevail to defeat the grantee’s interest. An explanation can only lie in the fact that the things attached to real estate, under such an agreement, continue as chattels, so that a grant or mortgage of the land does not comprehend them.

We may agree that the English rule is better grounded in logic and common sense than is our own. Nevertheless we are dealing with a rule of property well established in this jurisdiction. That rule calls for a holding that the tenant fixtures of this claimant were at all times personalty, and, therefore, not subject to appropriation by the city which may condemn real estate and no other property.

I, therefore, favor a reversal, and dissent.

Cardozo, Ch. J., Pound and Hubbs, JJ., concur with Lehman, J.; Crane and Kellogg, JJ., dissent in opinions, in which O’Brien, J., concurs.

Order affirmed.