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L. 1909, ch. 52.—"An act relating to real property, constituting chapter Afty of the

consolidated laws."

[In effect February 17, 1909.)



Article 1. Short title; definitions ($$ 1, 2).

2. Tenure of real property ($$ 10–18).
3. Creation and division of estates ($$ 30-72).
4. Uses and trusts ($$ 90–117).
5. Powers ($ $ 130–182).
6. Dower ($S 190-207).
7. Landlord and tenant ($9 220–232).
8. Conveyances and mortgages (S$ 240–275).
9. Recording instruments affecting real property ($$ 290–334).
10. Discharge of ancient mortgages ($$ 340–344).
11. Quieting title to real property ($$ 360–366).
12. Registering title to real property ($$ 370_435).
13. Cemetery lands ($$ 450, 451).
14. Laws repealed; construction; when to take effect ($$ 460–462).


Section 1. Short title.

2. Definitions.

§ 1. Short title.—This chapter shall be known as the "Real Property


Source.-Former Real Prop. L. (L. 1896, ch. 547) $ 1.

Consolidators' note.—The matter relating to definitions and construction of chapter has been divided into two new sections and placed in its appropriate place in the chapter as 88 2 and 461. VOL. VII-1


$ 2.

Short title; definitions.

L. 1909, ch. 52.

§ 2. Definitions.—The terms "real property” and “lands” as used in the first eight articles of this chapter are co-extensive in meaning with lands, tenements and hereditaments.

Source.- Former Real Prop. L. (L. 1896, ch. 547) § 1; originally revised from R. S., pt. 2, ch. 1, tit. 5, $$ 10, 11.

Consolidators' note.—The amendment proposed restores the usage of the Revised Statutes which confined the definition of this section to the matter contained in the first eight articles. Observe that art. 9 of this chapter ($ 240, new $ 290) contains its own definitions, slightly at variance with that in § 2. Therefore the definition of 8 2 is not, as it now stands, correct.

References.-General definition of real property, General Construction Law, $ 40; term defined for purposes of taxation, Tax Law, $ 2, subd. 3; term defined as used in article relating to recording instruments, Real Property Law, $ 290. Defined in statute relative to descents, Decedent Estate Law, $ 80.

Definitions compared.—Definition of real property as contained in this section and that contained in g 290, post, compared. Mayor v. Mabie (1855), 13 N. Y. 151, 158.

Lands, tenements and hereditaments.—Hereditament is more comprehensive than either "land or tenement" and includes whatever may be inherited, corporeal or incorporeal. Nellis v. Munson 1888 108 N. Y. 453, 459, 15 N. E. 739; Canfield v. Ford (1858), 28 Barb. 336; Pelletreau v. Smith (1859), 30 Barb. 494.

Real property includes all interests in land, whether in possession, reversion or remainder. Floyd v. Carow (1882), 88 N. Y. 560, 569.

Land includes not only the naked earth, but everything within it, and buildings, trees, fixtures, and fences upon it, etc. Baker v. Johnson (1942), 2 Hill 342; Green V. Armstrong (1845), 1 Denio 550; Mott v. Palmer (1848), 1 N. Y. 564.

Lands conveyed by metes and bounds include land under water as well as other land, if the land under water is within the bounds of the grant. Rogers v. Jones (1828), 1 Wend. 237.

Sand placed on land for storage and not for the improvement of the soil does not become realty. Graham v. Purcell (1908), 126 App. Div. 407, 110 N. Y. Supp. 813.

Growing trees, fruit and grass are part of the land and descend with it to the heir. Warren v. Leland (1848), 2 Barb. 613.

Trees standing upon the lands of a person belong to such person, and he is entitled to all its fruit notwithstanding some branches overhang the lands of another. Hoffman v. Armstrong (1872), 48 N. Y. 201.

Standing trees form a part of the land and as such are real property. Goodyear v. Vosburgh (1869), 57 Barb. 243; Vorebeck v. Roe (1867), 50 Barb. 302.

An owner of land adjoining a highway may have damages for cutting down a tree in the highway in front of his premises. Edsall v. Howell (1895), 86 Hun 424, 33 N. Y. Supp. 892.

A grant of growing trees to one who has no interest in the soil severs them and makes them personal property. McIntyre v. Barnard (1843), 1 Sandf. Ch. 52; Lyon v. Wing (1884), 20 Wk. Dig. 144; Bank of Lasingburgh v. Crary (1847), 1 Barb. 542.

Trees growing in a nursery planted by a tenant must be removed by him on the termination of his lease or title will vest in the owner of the reversion. Brooks v. Galster (1868), 51 Barb. 196. As between mortgagor and mortgagee trees grown in a nursery are covered by the mortgage, and those standing on the land when it is sold under a foreclosure, pass with the land to the purchaser. Hamilton v. Austin (1885), 36 Hun 138.

Growing grass partakes of the nature of realty and goes upon the death of the owner to the heir or devisee. Matter of Chamberlain (1894), 140 N. Y. 390, 35 N. E. 602.

L 1909, ch. 52.

Tenure of real property.

8 10.

Mines.-Coal in the earth and forming part of it is to be regarded as real
property. Genet v. D. & H. Canal Co. (1895), 13 Misc. 409, 35 N. Y. Supp. 147,
revd. on other grounds (1896), 1 App. Div. 631, 37 N. Y. Supp. 610.

Right to a pew is an interest in real estate. McNabb v. Pond (1856), 4 Bradf. 7;
First Baptist Church v. Bigelow (1836), 16 Wend. 28, 31. It is right springing out
of the land and has some of the qualities of realty. Shaw v. Beveridge (1842),
3 Hill 26; First Baptist Church v. Witherell (1832), 3 Paige 296; Johnson v. Corbett
(1884), 11 Paige 265, 276, in which case a pew was not considered personal estate
unless it was leased for a term of years. Kent classified pews among incorporeal
hereditaments. 3 Kent's Com. 401 (14th Ed. 1896).

Leasehold interest in oil lands, character considered and effect of $ 39 of the
General Construction Law, stated. Broman v. Young (1885), 35 Hun 173.

A rent charge in fee is a hereditament, devisable, descendible and assignable
like other incorporeal hereditaments. Cruger v. McClaughry (1868), 51 Barb. 642,
affd. (1869), 41 N. Y. 219; see also Carter v. Burr (1862), 39 Barb. 59.

Term for years is not a tenement or a hereditament. Mayor v. Mabie (1855), 13
N. Y. 151, 159. So held at common law. People ex rel. Sears v. Westervelt (1836),
17 Wend. 674, affd. (1838), 20 Wend. 416; see also Despard v. Churchill (1873),
53 N. Y. 192, 199; Merry v. Hallet (1824), 2 Cow. 497.

A tenant for years is not included in the phrase "any person claiming the real

estate owned by him" as found in L. 1893, ch. 560, providing for damages caused

by the grading of a street. Matter of Ehrsam (1899), 37 App. Div. 272, 55 N. Y.

Supp. 942.

Chattel interests.-Real estate when applied to an interest in lands, includes all

estates or interests therein which are held for life or some greater estate, but

does not embrace terms for years and other chattel interests in land. Westervelt

v. People (1838), 20 Wend. 416; Jackson ex dem. Cary v. Parker (1828), 9 Cow. 73;

Jackson ex dem. Gratz v. Catlin (1807), 2 Johns. 248, atd. (1809), 8 Johns. 520.

But chattels real are included in the definition of real property as used in 8

290, post. Ely v. Scofield (1861), 35 Barb. 330.

Equitable interest in lands may be within the above definition. Wright v.

Douglass (1849), 2 N. Y. 373, 376.

§ 10. Capacity to hold real property.-1. A citizen of the United States
is capable of holding real property within this state, and of taking the
same by descent, devise or purchase.

2. Alien friends are empowered to take, hold, transmit and dispose of
real property within this state in the same manner as native-born citizens


Tenure of real property.

L. 1909, ch. 52.

and their heirs and devisees take in the same manner as citizens; provided, however, that nothing herein contained shall affect the rights of this state in any action or proceeding for escheat instituted before May nineteenth, eighteen hundred and ninety-seven. (Amended by L. 1913, ch. 152.)

Source.-Former Real. Prop. L. (L. 1896, ch. 547) $ 2; originally revised from R. S., pt. 2, ch. 1, tit. 1, § 8. Subd. 2 is taken from L. 1897, ch. 593, § 1.

References.—Devises of real property to aliens are void, Decedent Estate Law, $ 13, subject to the provisions of this section as amended by L. 1913, ch. 152. Devises to certain corporations regulated, Id. § 12. Property which may be devised, Id. 11. Descent of real property upon death of owner, Id. SS 80–101.

A citizen may be defined to be one who owes allegiance to the state and has the right of reciprocal protection from it. But "citizen," "voter," and "elector" are not synonymous. In re Rousos (1909), 119 N. Y. Supp. 34.

Determination as to who are citizens.-In the absence of federal statute, the common law, as it existed at the time of the adoption of the Federal Constitution, is to determine who are citizens of the United States. Ludlam v. Ludlam (1863), 26 N. Y. 356.

Prima facie proof of naturalization.-Proof that a person came in 1865 from Ireland to the State of New York, lived there until his death in 1899, participated in state and national elections, and held a liquor tax certificate when he died, is prima facie sufficient to show that he was a citizen when his wife died in 1898, and hence that he could take land from her by devise. Fay v. Taylor (1900), 31 Misc. 32, 63 N. Y. Supp. 572.

Laws of foreign countries, granting similar privileges as to taking, acquiring and holding lands must be proven. Douglass v. Douglass (1911), 70 Misc. 412, 128 N. Y. Supp. 912.

Aliens; construction and application.-The provision of this section with reference to the capacity of an alien to take property was intended to embrace the right to transmit lands by inheritance, although such right is not expressly mentioned. Haley v. Sheridan (1905), 107 App. Div. 17, 94 N. Y. Supp. 864.

The privileges conferred by this provision are matters of comity and in no way dependent upon the intention of the alien; the privileges are without restriction or forfeiture, and the title will have nothing added to it if the alien subsequently becomes a citizen. So, such an alien may acquire property by devise or descent, and if he become seized of realty within this state, and if he do not convey or devise the same, at his death, it will pass by descent as if he were a citizen. Haley v. Sheridan (1907), 190 N. Y. 331, 83 N. E. 296, affg. (1906), 114 App. Div. 903, 100 N. Y. Supp. 1119.

An alien is, in general, incapable of taking or transmitting an estate in lands by descent. People v. Conklin (1841), 2 Hill 67. And alien heirs of a citizen cannot take or hold real property except upon compliance with statute. McCarty v. Terry (1872), 7 Lans. 236.

Where some of the persons who might inherit are aliens, their shares do not escheat to the state, but are disregarded and the entire estate goes to those heirs at law who are citizens. Douglass v. Douglass (1911), 70 Misc. 412, 128 N. Y. Supp. 912.

Children of naturalized citizens become, by the naturalization of their parents, citizens of the United States. People v. Newell (1885), 38 Hun 78.

A child born in this state of alien parents during their temporary sojourn is a citizen of the United States. Lynch v. Clarke (1844), 1 Sandf. Ch. 583, 645.

The daughter of a person who became a citizen of the United States at the time of the Declaration of Independence is not an alien. Peck v. Young (1841), 26 Wend. 613, writ of error dis. (1842), 1 How. 250, 11 L. ed. 120.

Woman who marries citizen.-Under the United States' statutes, act 1855, to the

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