Conkling v. Zerega ( 1893 )

FOLLETT, J.

The cause of action alleged in the complaint, and sought to be established on the trial, is that the defendant, by the clause quoted from the contract of January 10, 1874, became liable to pay to the plaintiffs’ assignor one-third of the damages awarded for closing Bloomingdale road. ¡No other ground for the recovery of the sum for which the verdict was directed is stated in the complaint, nor was there any evidence given on the trial which tends-to support, upon any other theory, the judgment. The sole question is, did the defendant become liable, under the clause quoted from the contract, to pay over any part of the damages awarded' on account of the Bloomingdale road? The language is not ambiguous, and it is provided, in clear terms, that the defendant should pay to the plaintiffs’ assignor one-third of all sums which had been awarded, and in the concluding part of the clause it is expressly provided “that the party of the first part [plaintiffs’ assignor] is not to receive any portion of awards hereafter made.” By this language, the defendant became liable to pay over one-third of all awards then made, but she did not become liable to pay over any part of awards thereafter made. The defendant paid the third-part of the award made before the execution of the contract, which terminated her liability under it. In the absence of an agreement to the contrary, the damages caused by closing the road belonged to the owner of the fee of the land at the date when the road was closed, which was March 3, 1868. King v. City of New York, 102 N. Y. 171, 6 N. E. Rep. 395. Who owned the fee at this date does not appear; but had it been shown that the plaintiffs’ assignor then owned one-third of it, or that she had received an assignment of an interest in the damages from the owner of the fee, the plaintiffs would not have been entitled to recover, because no such cause of action is alleged in the complaint, and for the further reason that, under the evidence contained in the record, the statute of limitations had run against a recovery on that ground. The judgment should be reversed, and a new trial granted, with costs to the appellant, to abide the event.