# In re City of New York

> Appellate Division of the Supreme Court of the State of New York · December 11, 1939 · 258 A.D. 191

URL: https://www.frixlaw.com/law-library/cases/5360508

## Case

- **Full name:** In the Matter of the Application of The City of New York, etc., Relative to Acquiring Title to Real Property, etc., Situated on the Southwesterly Side of Jamaica Bay, etc., Borough of Brooklyn. Gerritsen Basin Development Corporation, John Vanderveer, J. Duffield Prince, etc., Henry D. Lott, etc., and Harriet S. Lott, etc., Appellants The City of New York, (Jamaica Bay Proceeding No. 1.) In the Matter of the Application of The City of New York, Acting by and through the Commissioner of Docks, Relative to Acquiring Title to Lands, etc., Situated on the Southwesterly Side of Jamaica Bay, etc. Helena K. Wyeth and Others, Appellants The City of New York, (Jamaica Bay Proceeding No. 1.) In the Matter of the Application of The City of New York, etc., Relative to Acquiring Title to Real Property, etc., Being Part of Oraboss and Bushes Meadows, etc., Borough of Brooklyn. Gerritsen Basin Development Corporation, Appellant The City of New York, (Jamaica Bay Proceeding No. 2.) In the Matter of the Application of The City of New York, Acting by and through the Commissioner of Docks, Relative to Acquiring Title to Lands, etc., Forming Part of Oraboss Meadows and Bushes Meadows, etc. Helena K. Wyeth and Others, Appellants The City of New York, (Jamaica Bay Proceeding No. 2.) In the Matter of Acquiring Title by The City of New York to Certain Lands, etc., on the Southerly Side of Marine 15th Street, etc., for Park Purposes, in the Borough of Brooklyn, as an Addition to Marine Park. Gerritsen Basin Development Corporation, Tidewater Investing Corporation and Tristram W. Metcalfe, Appellants The City of New York, (Addition to Marine Park Proceeding.) In the Matter of Acquiring Title by The City of New York to the Area Bounded by Marine 15th Street, etc., for Park Purposes in Connection with the Development of Marine Park, in the Borough of Brooklyn, etc. Helena K. Wyeth and Others, Appellants The City of New York, (Addition to Marine Park Proceeding.)
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** December 11, 1939
- **Citations:** 258 A.D. 191; 18 N.Y.S.2d 743; 1939 N.Y. App. Div. LEXIS 6396
- **Precedential status:** Published
- **Opinion:** Concurrence by Carswell
- **Judges:** Carswell, Close, Hagarty, Lazansky, Taylor
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5360508

## Opinion text

Carswell, J. (concurring).
When this case was here before I did not concur in the opinion of the court. I merely concurred in the result, which is not controlling on the question now presented. I concur in the opinion of Mr. Justice Close, with these observations:
(a) The basic conclusion of Special Term is reinforced by the rule of strict construction applicable here. A patent or a grant from a sovereign to a subject is to be construed strictly in favor of the Crown. A different rule prevails where the grant is to a town or a political subdivision. (People v. Foote, 242 App. Div. 162 ; 273 N. Y. 629 ; certiorari denied, 302 U. S. 760 .) The rule in respect to grants between private parties is that ambiguity or doubt as to meaning is to be resolved in favor of the grantee. (2 Tiffany, Real Property [2d ed.], § 437, p. 1618; Allen v. Trustees of Great Neck Free Church, 240 App. Div. 206 ; affd., 265 N. Y. 570 .) Likewise a grant by a sovereign to a subject or private person based upon a real or adequate consideration requires ambiguity to be resolved in favor of the grantee.
(b) That basic conclusion is further reinforced and buttressed by the rule of repose (Beers v. Hotchkiss, 256 N. Y. 41, 48 ; People v. Foote, supra) applicable to the resolving of disputes as to interpretations of old grants, that “ courts do not look at records with over-technical eyes after the- healing acquiescence ” of centuries. The “ rule of repose ” is not in conflict with the principle that there can be no abandonment of title — in fact it is wholly compatible with that principle. The rule here acts upon and presupposes a situation where contemporaneous or early interpretations of original grants resulted in a course of action or inaction, equivalent to a practical construction of the grant, which recognizes that there never was title in respect of the parcel in controversy in the one ■under whom a claim of title is belatedly asserted. This is a far cry from abandonment of title. It is a mere recognition that there *205 never was any title to abandon. The existence of the principle that there can be no abandonment of title does not militate against the existence of the “ rule of repose ” which has long been recognized. (Beers v. Hotchkiss, supra; People v. Foote, supra.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5360508. Public record. Not legal advice.