Opinion
January, 1905.
Frank Walling [ Siegmund Rosenthal, with him on the brief], for the appellant.
Edwin Kempton, for the respondent.
This is an appeal by a purchaser at foreclosure from an order denying his motion for relief from his purchase. It appears that the property was once conveyed to "William J. Curtis, trustee," and was conveyed by "William J. Curtis, trustee," to the defendant John Fallon in this foreclosure. It further appears that the said conveyance from "William J. Curtis, trustee," to the said defendant was made "subject, however, to the restrictions contained in Section 14 of Title 16 of Chapter 583 of the Laws of 1888, as amended by Chapter 702 of the Laws of 1897." It was objected that there was no evidence that the trust under which Curtis took the property was one authorized by the laws of the State of New York, and that the deed from Curtis, trustee, to the said defendant contains no evidence of the authority of the said Curtis to convey as trustee, nor was there any record thereof, or of said trusteeship. It was further objected that the property was conveyed by Curtis to the said defendant under certain restrictions, as I have indicated, while it was sold free and clear save as to certain assessments as to which no objection is made.
I think that the motion was rightly denied. The facts that beyond the word "trustee" there was no evidence to establish any trusteeship; that the term was simply "trustee" and not "as trustee," and that the conveyance to Curtis, trustee, ran to his heirs and assigns forever bring the case within Greenwood Lake P.J.R.R. Co. v. N.Y. G.L.R.R. Co. ( 134 N.Y. 435). "Trustee" is but descriptio personæ; the conveyance to Curtis, trustee, was absolute, and his power of conveyance was unlimited. (See, too, King v. Townshend, 141 N.Y. 358; Kanenbley v. Volkenberg, 70 App. Div. 97.)
As to the alleged restrictions, the purchaser rests upon the clause in the deed, and offers no evidence whatever. The assistant solicitor for the plaintiff deposes that the laws referred to imposed no restrictions upon lots upon the street whereon this lot is situate, or upon this lot, and that there are no restrictions anywhere provided for. It is quite apparent that there is not a mistake in the citation of the statute. A reading of the statute itself seems to make it plain that this lot is not within the purview thereof. If a defect is patent in the record of title, the purchaser may rest thereon, otherwise he must give evidence in justification of his refusal. ( Goodwin v. Crooks, 58 App. Div. 464; Greenblatt v. Hermann, 144 N.Y. 13, 18; Simon v. Vanderveer, 155 id. 377.) I think it clear that mere reference to the statute as if restrictive, when it is not, cannot effectuate a covenant, thereby giving to the statute a scope beyond the legislative intent. (See Clark v. N.Y. Life Ins. Trust Co., 64 N.Y. 33; Platt v. Finck, 60 App. Div. 312.) It is suggested that the clause was inserted because the lot at the time was part of a tract through which the streets restricted by the statute ran, and either that the remoteness of that part from those streets was not considered, or the parties failed to note the streets not restricted, or the clause was left as harmless surplusage.
The order should be affirmed, with ten dollars costs and disbursements.
HIRSCHBERG, P.J., WOODWARD and HOOKER, JJ., concurred.
Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.