Ellar Estates Corp. v. Cohen , 52 A.D.2d 900 ( 1976 )

In an action inter alia for ejectment, plaintiff and the intervener appeal from a judgment of the Supreme Court, Kings County, entered June 19, 1975, which, after a nonjury trial, inter alia, dismissed (1) the complaint and (2) the intervenor’s cross claims. Judgment affirmed, with costs. The issue is whether the condemnation acquisition in 1864 by the Brooklyn and Rockaway Beach Railroad Company of the then denominated Lot No. 17 in Canarsie was for right of way or for depot purposes. If the latter, the railroad acquired a fee title and there was no forfeiture when the said lot was conveyed to a realty company in 1906 (see Erie Lackawanna Ry. Co. v State of New York, 38 AD2d 463; O & W Lines v St. John, 20 NY2d 17; cf. Matter of City of New York [Harlem Riv. Drive-Coogan] 307 NY 447). The trial court determined, as an issue of fact, that the irregularity of shape of Lot No. 17 and its situs (together with other irregularly shaped lots obtained in the same award) at the terminus of the proposed railroad at the shore of Jamaica Bay manifested that it was obtained for depot purposes, and not as a right of way. The evidence clearly supports that finding. The facts that apparently no depot buildings were actually constructed on Lot No. 17 itself, and that in the 1890’s and early 1900’s the railroad operated a hotel and places of amusement at its terminal area in Canarsie, do not negate the apparent original intention in 1864 to use Lot No. 17 for depot purposes, or to reserve it for an expansion of depot facilities which might first be constructed on contiguous parcels contemporaneously obtained. There is no evidence to support plaintiff’s conjecture that Lot No. 17 was obtained in 1864 "in all probability, as an out and out land speculation.” In view of our conclusion, we find it unnecessary to consider the other grounds discussed by Trial Term in support of its result. Hopkins, Acting P. J., Martuscello, Latham, Titone and Hawkins, JJ., concur.