In re City of New York

Taylor, J. (concurring).

In relation to the claims to awards, of the appellant Gerritsen Basin Development Corporation, for real property taken within the confines of the so-called “ broken lands,” which claims are based upon that appellant’s contention that the Dutch grant of 1636 included such “ broken lands,” I am of opinion that the following additional considerations fortify the conclusion of my brother Close that such grant did not include those lands but did include only a “ flat ” on the mainland of Long Island. It did not include the marshy islands and land under water constituting the broken lands lying between the mainland and the ocean on the south. Such a grant must be construed strictly against the grantee. (People v. Foote, 242 App. Div. 162; 273 N. Y. 629; certiorari denied, 302 U. S. 760.) Thus construed, the land conveyed is on Long Island only. Further, the Dutch grant is in effect an ambiguous contract as far as the description therein is concerned. Practical construction of that contract by the parties thereto and their successors in title or interest, as shown by their acts or omissions in relation to the real property, aids in the interpretation of the description in the grant. The conduct of the said appellants’ alleged predecessors in title, as disclosed in the record, for an impressively long period of time — nearly 300 years — shows that they recognized that the land conveyed in the grant was mainland only. “ The practical interpretation of an agreement by a party to it is always a consideration of great weight. * * * There is no surer way to find out what parties meant, than to see what they have done.” (Insurance Go. v. Dutcher, 95 U. S. 269, 273; vide also Zimmermann v. Roessler & Hasslacher Chemical Go., 246 App. Div. 306, 315; affd., 272 N. Y. 566.)