Simms v. City of Brooklyn

DYKMAN, J. (concurring).

This suit was instituted for the recovery of an award for land appropriated under the right of eminent domain for the widening of a public street in the city of Brooklyn. The property for which the award was made was owned by Henry C. Simms, and he was entitled to the money. He died in 1883, leaving a last will and testament, by which he gave all his property to the plaintiff, and appointed her and' his sons the executors thereof. In the year 1886 the plaintiff executed and delivered to Harry E. Storm a deed of conveyance for the lot, including the front, which had been taken for widening the street. The consideration named in the deed was one dollar,and it was made “subject to the rights of the city of Brooklyn in and to so much of the front of the premises above described on North Second street as was taken or attempted to be taken for the widening thereof by an act passed April 19, 1871.” The question involved in this appeal is whether *862the award passed to Storm; the grantee of the plaintiff; As we have already seen, the boundaries specified in the deed from the plaintiff to Storm included the property taken by the city, but the exception from the operation of the deed of the rights of the city in' front of the property indicates a recognition of those rights by the grantee. The exception also indicates an intention to convey only the land to which the plaintiff had the title. The deed is entirely •destitute of language indicative of any intention to assign or convey the right of the plaintiff to the award in question, and it would not pass under the general language of the conveyance. The right to the award passed to the plaintiff under the will of her husband. The case of King v. Mayor, etc., of New York, 102 N. Y. 171, 6 N. E. 395, was similar to this, and it was there held that where, under a statute closing a highway, damages were directed to be awarded, and paid to the owners of premises required by the closing, the right to damages was personal, and belonged to an owner at the time of the closing, although before the award he had conveyed his title. The judgment should be reversed, and a new trial granted, with costs to abide the event.