In re the City of New York , 300 N.Y.S. 948 ( 1937 )

On the face of the record the owners of the property, by contract and deed, assigned a prospective award in condemnation in a street widening proceeding; but in a purchase-money mortgage the premises were described as “ being the same premises ” as those conveyed in the deed. The mortgagees and the subsequent grantee of the mortgagor both claim the award that has since been made. The court at Special Term held that the mortgagees were entitled to the award for the reason that, under the circumstances shown, a determination that the other claimant was entitled thereto would be “ absurd ” and inequitable. The purposes of the parties in the execution of these instruments, containing language obscure and ambiguous, are not clear. What was proposed to be accomplished was largely a question of intent. The mortgage is printed only in part. The deed in form assigning the award is obscure in certain of its provisions, particularly in the last sentence thereof, wMeh is not understandable. The motion was made on affidavits wMeh give no proper description of the property involved and the nature of the property taken in condemnation; nor of the circumstances surrounding the making of the contract, the deed and the purchase-money mortgage. These facts and circumstances may throw light on the intent of the parties at the time of the execution of the instruments, and permit construction of the language used therein, otherwise inexplicable. Order on reargument reversed on the law and the facts, without costs, and the matter remitted to Special Term, where proof may be offered, or the parties may proceed as they are advised. Appeal from original order dismissed. Davis, Adel, Taylor and Close, JJ., concur; Hagarty, J., concurs for reversal and for the dismissal of the appeal from the original order but dissents from that part of the decision wMeh remits the proceeding to Special Term, and votes to deny the motion, on the ground that appellant is entitled to the award.