Lido Colony Ass'n v. Shelbourne-Grand Hotel Co. , 135 N.Y.S.2d 799 ( 1954 )

Action under article 15 of the Real Property Law to determine claims to real property, consisting of a strip of land known as Fairway, situated at Long Beach, Town of Hempstead, Nassau County, and running to the high water mark of the Atlantic Ocean. After trial, judgment was entered determining title to the fee in respondent, subject to public easements. In 1928, two pieces of land were conveyed to appellant’s predecessor by separate grantors. One deed described the westerly boundary of the piece therein conveyed as running “ along the easterly side ” of Fairway. The other deed described the easterly boundary of the piece therein conveyed as running “ along the westerly side ” of Fairway. Neither deed included any part of Fairway in the description, nor did it grant any right, title or interest of the grantor to any part of Fairway, although the fact is that each grantor owned to the center line thereof. In 1950, respondent acquired a deed to the fee of Fairway from the trustee in bankruptcy of the two 1928 grantors. After acquiring the two pieces in 1928, appellant’s predecessor mortgaged its land and in the mortgage instrument the mortgagor’s right, title and interest in and to Fairway and to the center line thereof were included as subject to the mortgage lien. Subsequently, upon an additional mortgage loan, instruments using similar language were executed. Thereafter the mortgages were foreclosed; the property was sold and the referee’s deed repeated the specific descriptions set forth in the 1928 deeds and the mortgage instruments, and repeated the right, title and interest provisions which were in the mortgage instrmnents. In some of the subsequent conveyances the right, title and interest clauses were included in the deeds. The appellant contends that it owns the fee to Fairway because the evidence shows that the intention of the 1928 grantors was to convey it, and contends additionally that respondent is estopped from questioning appellant’s title. Judgment unanimously affirmed, with costs. No opinion. Present — - Adel, Acting P. J., Wenzel, MaeCrate, Beldock and Murphy, JJ. [See 285 App. Div. 830.]