Brzozowski v. Boutinger , 17 N.Y.S.2d 566 ( 1940 )

In an action for breach of contract or for money had and received, tried on stipulated facts before the court without a jury, plaintiffs appeal from a judgment in favor of defendants. Judgment unanimously affirmed, with costs. The three defendants, sole heirs and next of kin of their mother (one of whom was the administratrix of the mother’s estate), executed as individuals a contract to sell to the plaintiffs certain real property formerly of their mother. Defendants thereafter conveyed the property. The contract contained the assignment, in the usual form, to plaintiffs, in lieu of any part of the property taken for street-opening purposes after the contract was signed, any award made to defendants for the part so taken. Thereafter the mother’s administratrix received an award of damages for the closing of a street on which the property fronted in part, which closing took place in the mother’s lifetime long before the contract of sale was signed. The paragraph in the contract relating to an award for street opening had no relation to the street closing. Plaintiffs contend that apart from the contract the closing award passed to them as real property under the deed. It was stipulated at the trial that the closing gave rise to a claim for damages by the mother of the defendants. That claim passed to the mother’s administratrix, who did not sign either the contract or the deed. Lazansky, P. J., Hagarty, Carswell and Taylor, JJ., concur; Adel, J., concurs in result.