Citation Numbers: 99 A.D. 581
Judges: Jenks
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/12/2023
The servitude was imposed by chapter 257 of the Laws of 1899. The bank became a mortgagee first on February 28, 1899. If the
But the fund in court is not the award in the eye of the law, in that it represents the legal compensation to the landowner for the servitude. The landowners upon this block sought legislation which should assure a uniform courtyard line throughout the block. Mr. Burke, the owner of a corner lot upon the block, stood in their way; first, presumably he could defeat the practical purpose of the bill if it became a law by beginning construction beyond the proposed line, and avail himself of the exception provided by section 2 of the bill; and, second, he was opposed to the bill. Therefore, these owners agreed, in consideration of his commencement of construction within the proposed line and his change from opposition to advocacy of the bill, that the award to be made under the condemnation authorized by the bill should equal the sum of $4,000 over any assessment for benefit, and that to this end they would pay the difference between the balance of award over assessment and such sum; and they further agreed that if such sum was not produced by such law through the condemnation thereby authorized within one year from the time- it took effect, then they would pay such sum. In return they were to receive a paper enabling them to recoup themselves from the award and a paper limiting the use of said land to the line. The agreement finally provides : “ The true intent and purpose being to cause that the said bill if enacted into law shall, within one year from the date it takes effect, produce for said Burke the sum of four thousand dollars and interest as aforesaid, and that the limitations or restrictions proposed by such bill shall be secured as to such land in case the said bill is enacted into law during the present year.”
It is quite evident that the property owners were not seeking a courtyard covenant from Mr. Burke. They looked to the proposed ■statute to effect that restriction. The purpose of thus dealing with Mr. Burke was to prevent his frustration of the scheme, and to change his attitude from opposition to advocacy of the bill. The
Mr. Burke was under no obligation to the mortgagee to oppose the bill or to stand at gaze. So far as the record shows he was not guilty of any bad faith in the construction of his building within the proposed line. True, it was his ownership of the land which enabled him to strike this bargain, but he did not thereby impair the value of the land. In so far as the servitude impaired the land, the award represents compensation therefor. If he had made a covenant it might be contended that it ran with the land (Winfield v. Henning, 21 N. J. Eq. 188), but he was not required to make such covenant, nor did he do so. The bill so to speak was to impose the covenant if it became a law, and he simply agreed neither to oppose its passage nor to thwart its purpose.
The fallacy of the defendant is in regarding the money resultant from the agreement as if the award; when one represents what the property owners were willing to pay Burke to secure their object, and the other represents the compensation for the impairment by the servitude. The only connection between the two is that the property owners did not intend that Burke should receive a double payment from award and from them, and hence they provided for their reimbursement from the award on the supposition that Burke, as the owner, would finally be entitled to receive that award.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.