Hawes v. Clarke (159 A.D. 65, 1913)

Laughlin, J.:

This action was brought and tried and the judgment was rendered upon the theory that the filing of the papers, which by the judgment defendant is required to remove, and notations thereof by the registrar among the memorials on the original certificate of title on file with said registrar constitute a cloud on plaintiff’s title. The plaintiff also demanded judgment for damages for slander of title, but the court found that defendant was not actuated by malice and that plaintiff failed to prove any .damage.

The plaintiff owns the premises known as 241 West One Hundred and Fourth street on the southerly side between West End avenue and Broadway, commencing 15.3 feet west of Broadway and having a frontage of 40 feet and extending in depth 100.11 feet. On the 30th day of September, 1910, she brought an action to have her title registered pursuant to the provisions of article 12 of the Beal Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], as amd., by Laws of 1910, chap. 621), but she failed to make the defendant a party to the action. It was certified in the official examiner’s certificate of title, annexed to and made a part of the complaint in that action, that plaintiff’s premises were subject to no liens other than the liens of two specified mortgages and to no easement, and that “an inspection of the walls, halls, roofs, yards and fire escapes show ” no easements “ except that the wall on the east is a party wall in which there is an easement in favor of easterly premises to use said wall as a party wall,” and that there was no person not a party to the action interested in or claiming to have any right or interest in or to the premises. The certificate contained a diagram of the premises and a statement to the effect that the names and addresses of owners of adjoining parcels were shown thereon “ as far as reasonably obtainable by inquiry on the premises and by reference to the record, given below as shown in the diagram;” but that diagram does not show the name of any owner of adjacent premises. A preceding diagram of the premises in said certificate, certified to be <£an accurate diagram of the property proposed for registration,” shows certain names written thereon adjacent to the plaintiff’s premises with a memorandum to the effect that all owners so far as known resided on the premises. There was also annexed to the complaint a survey of the premises showing a party wall along the easterly side line of the premises, as stated in the certificate of title, for part of the distance, and showing on the southerly boundary for a distance of about two-thirds of the width of the premises a wall marked