Chapin Home for the Aged and Infirm-Petition of, for a Further Deed of Grant and Release of Certain Land Lying Within the Block Bounded by Lexington and Third Avenues, 66th and 67th Streets, in the Borough of Manhattan.

The following petition was received:

In the matter of the Chapin Home for the Aged and Infirm, with respect to certain property between Sixty-sixth and Sixty-seventh Streets and Lexington and Third Avenues, in the Borough of Manhattan, City of New York.

To the Honorable the Commissioners of the Sinking Fund of the City of New York: The petition of the Chapin Home for the Aged and Infirm, respectfully represents: First-That your petitioner is a domestic corporation duly organized and existing under the laws of the State of New York, in pursuance of an Act of the Legislature of the State of New York, duly approved by the Governor thereof and passed on the 1st day of May, 1869, being known as Chapter 461 of the Laws of 1869, and designated "An Act to incorporate the Chapin Home for the Aged and Infirm in the City of New York," wherein and whereby it is provided that "The general business and object of such corporation shall be to provide a home and support for aged and infirm persons;" that your petitioner is, and ever since May 1, 1869, has been a nonstock corporation and a membership corporation, engaged without profit to itself or to members in providing a home and support for aged and infirm persons in the City of New York without regard to race, creed or sect.

That under and by virtue of Chapter 876 of the Laws of 1869, of the State of New York, passed May 12, 1869, the Commissioners of the Sinking Fund of the City and County of New York were thereby "authorized to lease to the corporation, 'The Chapin Home for the Aged and Infirm,' such lots north of Sixty-sixth Street belonging to said City as may be necessary for the erection of a home, upon such terms and conditions and for such terms of years and annual rent as such leases have heretofore been made by municipal authorities to charitable institutions."

That pursuant to the provisions of said law, being Chapter 876 of the Laws of 1869, and to a resolution of said Commissioners of the Sinking Fund, duly passed on the 12th day of October 1870, and on or about the 29th day of March, 1871, by instrument bearing date on said day, the City of New York, by the Mayor, Aldermen and Commonalty of the City of New York, duly executed, acknowledged and delivered to your petitioner, a lease of certain real estate, situated in the Borough of Manhattan, City, County and State of New York, known and described as follows:

"Beginning at a point on the southerly side of 67th Street, which point is distant 170 feet easterly from the intersection on the easterly side of Lexington Avenue with the southerly side of 67th Street, and running thence easterly along the southerly side of 67th Street 170 feet; running thence southerly at right angles to 67th Street 200 feet 10 inches to the northerly side of 66th Street; thence westerly along the northerly side of 66th Street 170 feet to a point on said northerly side of 66th Street 170 feet easterly from the intersection of the easterly side of Lexington Avenue with the northerly side of 66th Street; running thence northerly at right angles to 66th Street 200 feet 10 inches to the southerly side of 67th Street, the point or place of beginning, reserving to the City all the right, title and interest in and to the lands in 66th and 67th Streets."

That said lease was for a term of ninety-nine years from the date thereof at an annual rental of One Dollar per year and imposed upon your petitioner no obligation to pay any taxes, assessments, either ordinary or extraordinary, water rates or water meter charges, or any other charges, upon the said premises demised by the said lease.

That your petitioner on said 29th day of March, 1871, was in possession of the said premises and has continued in possession thereof until the present time, except that on the 13th day of March, 1911, your petitioner conveyed by bargain and sale deed to Charles A. Peabody, for the sum of $40,000 the easterly 20 feet of said premises on 66th and 67th Streets, being 200 feet 10 inches in depth, and the said Charles A. Peabody thereupon entered into possession of the said premises and has been in possession thereof until the present time, and that your petitioner erected upon the said premises a home which, from the time of its completion until a period long subsequent to said 30th day of December, 1909, was used and kept as a Home for aged and infirm persons without regard to their place of birth, creed or denomination, as has always been the established rule of your petitioner, and in other respects in accordance with the provisions of said lease, and that from said 29th day of March, 1871, your petitioner in all respects duly performed all of the covenants, conditions and terms of said lease on its part to be performed.

That thereafter and in the year 1907, the Legislature of the State of New York

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duly passed an Act which became a law on the 6th day of June, 1907, with the approval
of the Governor of the said State, known as Chapter 434 of the Laws of 1907, whereby
the Board of Commissioners of the Sinking Fund of the City of New York were
thereby authorized and empowered in their discretion to sell to your petitioner, at
private sale, for such consideration as the said Board might deem proper, and grant
and convey in fee simple absolute to your petitioner, all the property hereinbefore
mentioned theretofore leased to your petitioner as aforesaid; and all the right, title
and interest of the City of New York in said land or property; so as to permit and
authorize your petitioner, after such conveyance and grant should have been made,
to sell, grant and convey in fee simple absolute the whole or any part of the said
premises, and in and by which Act it was provided that, in case any such sale should
be made by your petitioner, your petitioner should thereupon devote the proceeds
of such sale to the purchase of a new site within the City of New York, and to the
erection of new buildings, and to the maintenance and support of your petitioner, or
to any of such purposes. Moreover, it was provided by said Act that nothing therein
contained shall be construed to compel the vendee to see to the proper application
of the purchase price by your petitioner.

That thereafter and on or about the 25th day of February, 1909, your petitioner addressed and filed with the Commissioners of the Sinking Fund of the City of New York a duly verified petition, praying that the Commissioners comply with the terms of said Act and sell the said premises to your petitioner for the consideration of Five Thousand Dollars ($5,000) including the interest of the City of New York in the unexpired term of the lease, and in consideration of the agreement of your petitioner that upon request of the City of New York, it would continuously maintain free inmates or patients, giving 5,475 days of free treatment or care of such patients or inmates in each year in perpetuity and when it should have obtained title to the said premises, to sell the same and re-invest the funds in a larger institution for doing the work of said petitioner within the limits of the City of New York.

That_thereupon such proceedings were had that the said Commissioners of the Sinking Fund, by resolution duly adopted on the 15th day of December, 1909, in the exercise of the discretion vested in them by the provisions of said Act, and deeming said sum of Five Thousand Dollars ($5,000) to be a fair and pecuniary consideration for the grant in fee simple absolute of the premises above described, upon condition that your petitioner should covenant and agree as a condition of said grant, upon patients or inmates request of the City of New York, to continuously maintain free inmates or patients, giving 5,475 days of free treatment or care of such in each year in perpetuity, and when it should have obtained title to the property, to sell the same and re-invest the funds in a larger institution for doing similar work to that then carried on by the petitioner; to erect first class, modern structures, suitable in every way for the proposed purposes; to negotiate the whole matter, sell the property, the erection of the buildings and the safe investment of any surplus funds not immediately needed to put into new buildings until such time as the money might be needed for such purposes, all under the general supervision of the Comptroller, duly authorized and directed the Mayor and City Clerk of the City of New York to make, execute and deliver on behalf of the City of New York, its deed of release, conveying such premises in fee simple absolute to your petitioner; upon the delivery to the Comptroller of the City of New York of the said sum of Five Thousand Dollars ($5,000) together with an agreement in writing under seal, and executed pursuant to resolution of the Board of Trustees of said corporation, indicating its acceptance of the terms and provisos hereinbefore mentioned, which said deed of release should contain a provision expressly cancelling each and every of the covenants in the lease of such premises above described.

Thereafter, pursuant to resolution of the Board of Trustees of your petitioner, your petitioner on the 30th day of December, 1909, duly executed and delivered to the Comptroller of the City of New York, said agreement in writing under its seal, wherein and whereby, for and in consideration of the said resolution of the said Board of Sinking Fund Commissioners, adopted December 15th, 1909, and the execution and delivery to it by the City of New York, of the deed of the said premises mentioned in said resolutions, it covenanted and agreed to and did accept all the terms and provisions of the said resolution and to carry out and observe the same, and thereupon and on the 30th day of December, 1909, the City of New York. by the Mayor thereof and the City Clerk thereof, in pursuance of said resolution, duly made, executed and delivered its deed of release, conveying the said premises in fee simple absolute to your petitioner, which said deed of release contained a provision expressly cancelling each and every of the covenants in the aforesaid lease of such premises. and your petitioner paid to the City of New York the said sum of Five Thousand

Dollars (5,000). That the said deed was thereafter recorded in the office of the Register of the County of New York on the 31st day of December, 1909, in Section 5, Liber 155 of Conveyances, at page 193. That you petitioner on, and ever since, the 30th day of December, 1909, in all respects duly performed all of the covenants, conditions and terms on its part to be performed, of the said Act of the Legislature, known as Chapter 434 of the Laws of 1907, and of the said agreement and of the said deed.

Subsequent to the 30th day of December, 1909, your petitioner took steps immediately to obtain a purchaser for the said premises so conveyed to it, and has ever since endeavored to sell and dispose of the same. That, pending the sale of the said premises, and in order to enable your petitioner to erect the new buildings hereinabove referred to, which were to constitute its Home and where the purposes and objects of your petitioner were to be carried out, subsequent to the said 30th day of December, 1999, your petitioner agreed with the New York Life Insurance & Trust Company to accept a loan of $280.000, the amount of which loan was to be advanced by the New York Life Insurance & Trust Company to your petitioner in installments as the same should be required for the acquisition of property in the Borough of Queens, and for the erection and equipment of the buildings and Home thereon for the purposes of carrying out the objects for which your petitioner was created and the terms of said agreement with the City of New York; that your petitioner in reliance upon the validity of the conveyance of the said premises by said deed and the marketability of its title thereto, executed and delivered a mortgage to the New York Life Insurance & Trust Company to secure the payment of the sum of $280,000 covering, and which is a lien upon, all of the said premises in the Borough of Manhattan, and that there is now $240.000 due from your petitioner upon the bond and the loan secured by the said mortgage, the said New York Life Insurance & Trust Company having advanced said sum of money to your petitioner, and that your petitioner has already expended the sum of $27,600 in the purchase and acquisition of the title to land at Jamaica, in the Borough of Queens, City of New York, and the sum of approximately $347,000 in the erection of proper and adequate first class modern structures and buildings upon said land suitable in every way for the purposes of your petitioner and constituting a proper institution for carrying on the work of your petitioner, and in equipping the same properly to carry on the work of your petitioner.

That upon the erection of the said buildings in the Borough of Queens, and after the 30th day of December, 1909, your petitioner moved its aged and infirm inmates from the said building in the Borough of Manhattan, City of New York, to the said buildings in the Borough of Queens, which ever since it has used for the purposes of a home for the aged and infirm, and in which it has cared for and supported said aged and infirm inmates and others since received, without regard to their place of birth, creed or denomination.

That although your petitioner has, since the delivery to it of the said deed of release, been endeavoring to sell as a whole the said premises so conveyed by it, it has been unable to do so, but has been able to sell only a small portion thereof, viz., the easterly 20 feet thereof extending from 66th Street to 67th Street, which it sold in reliance upon said deed and the marketability of said title, for which it received the sum of $40,000 as a consideration therefor and which it conveyed to said purchaser free of the lien of said mortgage, and that the said consideration for the said conveyance was an adequate consideration and at least equaled the value of the said property so conveyed to said Peabody.

That on or about the 11th day of June, 1914, your petitioner entered into a certain contract in writing with one Gertrude A. Vanderbeck, wherein and whereby your petitioner agreed to sell and convey the following described premises by full covenant and warranty deed to the said Gertrude A. Vanderbeck or her heirs or assigns for the sum of $180.000, of which $100.000 was to be used to relieve the premises to be sold from the lien of said mortgage, or at the option of the purchaser $100,000 thereof was to be paid by taking said premises subject to the lien of $100,000 of said mortgage to wit:

"All those certain lots, pieces or parcels of land with the buildings and improvements thereon erected. situate, lying and being in the Borough of Manhattan, City, County and State of New York, and more particularly bounded and described as follows:

"Beginning at a point on the northerly side of East 66th street distant one hundred and seventy (170) feet easterly from the corner formed by the intersection of the easterly side of Lexington avenue with the northerly side of 66th street: running thence northerly at right angles to 66th street one hundred (100) feet and

five (5) inches more or less to the centre line of the block between 66th and 67th streets; thence easterly along the centre line of said block one hundred and fifty (150) feet; thence southerly and again at right angles to 66th street one hundred (100) feet and five (5) inches more or less to the said northerly side of 66th street; and thence westerly along the northerly side of 66th street one hundred and fifty (150) feet to the point or place of beginning."

That said premises are a portion of the premises conveyed to your petitioner by the City of New York under said deed of release dated December 30th, 1909, aforesaid. That on the 8th day of July, 1914, upon the petition of your petitioner verified the 2nd day of July, 1914, an order was duly made and entered in the Supreme Court of the State of New York, in the office of the Clerk of the County of New York, in the matter of the application of The Chapin Home for the Aged and Infirm for permission to sell the premises last above mentioned, wherein and whereby it was ordered that your petitioner might and was thereby authorized and given leave to sell, grant and convey in fee simple absolute to said Gertrude A. Vanderbeck, or her heirs and assigns, for the sum of $180,000, the said premises last above mentioned, and that your petitioner by its duly authorized officers duly execute, acknowledge and deliver to the said Gertrude A. Vanderbeck, her heirs and assigns, a full covenant and warranty or other deed of the said premises in accordance with the terms of the said

contract.

That said contract for the sale of said premises was assigned by said Gertrude A. Vanderbeck to the Akron Building Company.

That thereafter, and at the time of the adjourned closing of title to said premises on the 4th day of September, 1914, both the said Akron Building Company, and the said Gertrude A. Vanderbeck, through their representatives, refused to take title to said premises under the said contract and rejected the title of your petitioner upon the claim that such title is unmarketable, for the reason that it depends upon a deed from the City of New York to your petitioner, which deed, they asserted, is invalid and at any rate of doubtful validity, because, as they asserted, of having been made in violation of law and of the constitution of the State, and because, as they asserted, it is doubtful if the City of New York had authority to execute and deliver such a deed, inasmuch as, they asserted, the consideration thereof was so inadequate as to constitute a violation of the provisions of said Constitution.

That thereafter, the said Akron Building Company brought an action against your petitioner in the Supreme Court of the State of New York, in the County of New York, to recover the sum of $5,000 theretofore paid on account of said purchase price and to recover its disbursements and expenses and to impress a lien on the said premises covered by said contract with the said Vanderbeck for said amount and for said disbursements and expenses. That said action came on for trial and was tried before the Honorable Mr. Justice Lehman, at a Special Term, Part III, of said Court, in said County, and on the 12th day of July, 1915, the Honorable Mr. Justice Lehman duly handed down his opinion and on the 15th day of July, 1915, the said Court duly made and filed its decision in said action, whereby it is found and determined that the title of your petitioner to the said premises is in fee simple absolute and that your petitioner is the owner of the said premises and that the said title is marketable, and that the sum of $5,000 passing to the City of New York for said deed, dated December 30th, 1909, was an adequate consideration for the grant and release of the said premises mentioned in said deed to your petitioner.

That upon the trial of the said action it was urged by said Akron Building Company that the aforesaid agreement by your petitioner continuously to maintain free inmates or patients, giving 5.475 days of free treatment or care of such patients or inmates in each year in perpetuity upon the request of the City of New York, and to invest and re-invest the proceeds of the sale of said property as provided by said agreement, was invalid as a consideration passing to the City of New York for the said deed, dated December 30th, 1909, and formed no part of the consideration to the City of New York for the said deed.

That judgment was duly rendered and entered in the office of the Clerk of the County of New York in said action in favor of your petitioner and against the said Akron Building Company on the 22nd day of July, 1915, dismissing the complaint of the Akron Building Company upon the merits, and an appeal has been duly taken from the judgment by the said Akron Building Company to the Appellate Division. First Department, of the Supreme Court of the State of New York, but said appeal is now pending and has not been heard or determined by said Appellate Division.

Your petitioner further shows that the value, if any, and the market value. if any, of the interest. if any, of the City of New York in and to the said premises encumbered by said lease so conveyed by the City of New York, was on said 30th

day of December, 1909, and at all times thereafter would be less than the sum of $5,000.

That it has become necessary for your petitioner to make provision for payment on account of said $240,000 now due and owing upon the said bond and mortgage, and for the erection of new buildings at Jamaica, in said Borough of Queens, and for the maintenance and support of your petitioner or for any of such purposes, and in order to provide for such purposes to sell the said property conveyed by said deed of the City of New York, dated December 30th, 1909, as contemplated by the said Act of Legislature of the State of New York, Chapter 434 of the Laws of 1907. That Cooperative Building Construction Company, a corporation duly organized and existing by and under the laws of the State of New York, and having its office and principal place of business at Nos. 5 and 7 East 42nd street, Borough of Manhattan, New York City, is now desirous of purchasing from your petitioner the westerly 150 feet of said tract of land on 66th street, conveyed to your petitioner by said deed dated December 30th, 1909, running to the center line of the block between 66th and 67th streets, 100 feet and 5 inches, and to pay therefor the sum of $205.000, but is unwilling so to do unless it can procure from the lawyers Title & Trust Company of New York, a corporation organized for the purpose of examining and insuring titles to real estate and policies and titles of insurance.

That in anticipation of entering into a contract of purchase with your petitioner, the representatives of the said Cooperative Building Construction Company, as your petitioner is informed and believes, since the rendition of said judgment, advised the said Lawyers Title & Trust Company of New York and the Title Guarantee & Trust Company of New York, a corporation similarly engaged in the business of insuring titles to real estate, that, as a condition of the purchase of said property, it would require a policy of insurance to the company of the title to be acquired by it of such property, but that the said Title Guarantee & Trust Company stated that it would be reluctant and should probably decline to accept an application, and the said Lawyers Title & Trust Company refused, to insure such title until the final determination of the said action in favor of your petitioner, or until a further cash consideration had been paid to the City for a further deed or deeds of the said property, which would obviate all questions raised in said action as to the title of your petitioner to the said property.

Because of the questions raised by the said Vanderbeck and the said Akron Building Company and because there has been no final determination yet of the issues involved in the said action and the consequent attitude of the said Title Insurance corporations, your petitioner is apprehensive that it may be unable to presently find a party who will enter into a contract of purchase of the whole or any part of the said tract of land so conveyed to your petitioner, as aforesaid, unless and until such questions as to your petitioner's said title have been finally settled on appeal in the said suit to the Court of Appeals, which will necessarily involve a long and serious delay, or until there is paid to the City of New York by your petitioner for an additional deed conveying said tract of land to your petitioner pursuant to said Act, Chapter 434, of the Laws of 1907, a further sum, which shall satisfy the said Title Corporations or either of them, or any proposed purchaser that there has been a sufficient and adequate consideration paid wholly in cash for the conveyances to your petitioner by the City of New York of said tract of land.

That your petitioner has reason to believe that said Title Insurance Companies would be willing to insure the said title and that any purchaser desiring to purchase the said property would be willing to accept the said title to the said premises, so conveyed, to your petitioner as aforesaid by the City of New York, provided there be paid such cash consideration to the City of New York, as may be fixed by the Commissioners of the Sinking Fund, and that the City of New York, pursuant to the said Act, by an additional deed or deeds, release any interest it may have in the said premises to your petitioner, and that your petitioner in anticipation thereof has made and entered into a contract with the said Cooperative Building Construction Company to sell to it the said premises so desired to be purchased by it for the said sum of $205,000, conditioned upon the obtaining by your petitioner from the City of New York of an additional deed or deeds for the entire tract of land above mentioned satisfactory in terms and conditions to your petitioner.

Your petitioner considers itself obligated to obtain confirmation of the title of the said Charles A. Peabody to that portion of the entire tract of land, purchased by him as aforesaid from your petitioner.

Therefore, your petitioner is desirous of procuring additional deeds from the City of New York, conveying to your petitioner that portion of the said tract of land other than the premises conveyed to the said Peabody, and a deed to the said