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does not appear to have appealed from the order denying that motion. It thus appears that the plaintiff has not availed herself of the offer of the court to incorporate the findings of fact in the judgment roll, and that she has acquiesced in the determination of the court that the judgment was properly directed by the decision of the court. This would seem to conclusively establish the validity of the judgment, so far as these objections are concerned, and the motion to compel the defendant to accept a notice of appeal from the judgment necessarily assumes that there is a valid judgment to be appealed from, and the suggestion now made that the judgment roll contains papers not necessary or proper is of no force, for the reason that these papers might be removed therefrom by an order, assuming them to be improperly included. They do not go to the validity of the judgment, where all of the necessary papers are present. They merely constitute a surplusage, which may be removed in an orderly manner, not in any legal sense prejudicial to the plaintiff.
But it is urged that the copy of the decision or findings as served did not contain the signature of the justice. The record shows that the decision as filed and incorporated in the roll is signed by the justice, and by a stipulation appearing upon the record it is shown that the copy of the decision, the receipt of which was acknowledged by the plaintiff, contained a copy of the signature in type of the justice making the decision, and the plaintiff, making no objection, retained the copy thus served upon her and filed her exceptions thereto. This objection is hardly broad enough to justify this court in extending the time for appeal, against the positive provisions of the statute. It is not necessary to hold that the plaintiff waived any rights to the technical objections to the form of the decision and service thereof and of the judgment, by admitting receipt of a copy of the defendant's copy of the decision. These rights, in so far as they relate to the form of the decision and the validity of the judgment, were involved in the motion to set aside the judgment, and were waived when she neglected to appeal from the order denying her motion.
The order appealed from should be affirmed.
Order affirmed, with $10 costs and disbursements. All concur.
In re WALTON AVE.
(Supreme Court, Appellate Division, First Department. April 23, 1909.)
1. MUNICIPAL CORPORATIONS (§ 657*)-STREETS-DISCONTINUANCE-STATUTORY
Laws 1895, p. 2037, c. 1006, authorizing the discontinuance of streets in the manner therein provided, provides for the destruction of public and private easements in the discontinued streets.
[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 657.*]
"For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
2. EMINENT Domain (§ 174*)—VACATION OF Streets-Statutes—DamagES. Laws 1895, p. 2037, c. 1006, authorizes the discontinuance and the laying out of streets by the filing of a map indicating the permanent streets and omitting the discontinued streets, and provides that any discontinued streets actually open and included within any square made by streets laid out on the map shall cease after one of the streets shall be opened. A map created a new block bounded by a street actually open at the time and by new streets indicated on the map. The discontinued streets were actually in use at the time. Held, that the effect of the map was to permanently close the discontinued streets within the new block, and the owners were entitled to damages as of the date of the filing of the map, as against a contention that no damages accrued until one of the new streets was actually physically opened for use.
For other cases, see Eminent Domain, Dec. Dig. § 174.*]
3. DEDICATION (§ 44*)-ACTS CONSTITUTING DEDICATION EVIDENCE.
Evidence held to show that streets discontinued by a map filed pursuant to Laws 1895, p. 2037, c. 1006, authorizing the discontinuance and the laying out of streets, were public streets by virtue of a dedication and an acceptance authorizing compensation for their discontinuance.
[Ed. Note. For other cases, see Dedication, Dec. Dig. § 44.*]
4. DEDICATION (§ 53*)-STREETS-RIGHTS ACQUIRED.
The dedication of land for a street and an acceptance thereof by the city authorities do not vest the fee in the city, though it has authority to acquire the fee to streets.
[Ed. Note.-For other cases, see Dedication, Cent. Dig. § 97; Dec. Dig. § 53.*]
5. EMINENT DOMAIN (§ 231*)-PUBLIC IMPROVEMENTS-DISCONTINUING STREETS -DAMAGES--PROCEEDINGS FOR ASSESSMENT.
Commissioners awarding damages for the discontinuance of streets, pursuant to Laws 1895, p. 2037, c. 1006, authorizing the discontinuance and the laying out of new streets by filing a map indicating the permanent streets and omitting the discontinued streets, properly assumed that awards in proceedings to acquire land for new streets, designated on the map discontinuing the streets, were made on the proper basis, and they could not speculate as to what additional compensation the owners re ceived in the condemnation proceedings over and above that to which they were legally entitled.
Note. For other cases, see Eminent Domain, Dec. Dig.
6. EMINENT DOMAIN (§ 75*) - PAYMENT BEFORE TAKING-CONDEMNATION BY
Ordinarily, where lands or easements therein are acquired for public purposes, the private title or easements are not extinguished until just compensation has been made; but, where the right of eminent domain is exercised by the state or a political division thereof, the legislation may provide for the extinguishment of the title and easements in advance of compensation, provided that the owner, as a substitute for his property, is given an adequate remedy for damages.
[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 198, 199; Dec. Dig. § 75.*]
7. EMINENT DOMAIN (§ 153*)-DISCONTINUANCE OF STREETS-COMPENSATION— ASSESSMENT.
Under Laws 1895, p. 2037, c. 1006, authorizing the discontinuance of streets extinguishing public and private easements in discontinued streets, requiring the corporation counsel to institute proceedings to determine just compensation, etc., the right to compensation for discontinuing a
street accrues the moment the street becomes legally closed, whether the street is then actually closed or not.
[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 153.*]
8. EMINENT DOMAIN (§ 127*)-PUBLIC IMPROVEMENTS-VACATION OF STREET
The just compensation to which each owner is entitled for the discontinuance of a street is the depreciation in value of his land by the closing of the street.
[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 127.*]
9. EMINENT DOMAIN (§ 235*)-PUBLIC IMPROVEMENTS AWARD OF DAMAGESOBJECTIONS.
A specific objection by a city to the award of damages for the discontinuance of streets on the ground that the award was made on the erroneous theory that a street was closed was not a waiver of a general objection challenging the award on the ground that the petitioner had not shown that he was legally entitled to receive any award and that the evidence was insufficient to justify the award or any portion thereof.
[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 235.*]
10. EMINENT DOMAIN (§ 200*)-PUBLIC IMPROVEMENTS-COMPENSATION—BurDEN OF PRoof.
One seeking damages for the discontinuance of streets pursuant to Laws 1895, p. 2037, c. 1006, authorizing the discontinuance of streets, is the moving party and must show his title and his damagės.
[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 200.*]
11. EMINENT DOMAIN (§ 269*)—PUBLIC IMPROVEMENTS-COMPENSATION-CLAIMS -SUFFICIENCY.
Under Laws 1895, p. 2037, c. 1006, authorizing compensation for the discontinuance of streets, requiring persons claiming compensation to present to the chief financial officer of the city a written claim for compensation with a request that proceedings be instituted for the determination thereof, etc., the object of a claim for damages is not to procure a settlement thereof, but to have proceedings instituted to ascertain the damages, and it is not vital to the validity of a claim for damages that the claimant should state with accuracy the amount of damages claimed.
[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 269.*]
12. EMINENT DOMAIN (§ 85*)-PUBLIC IMPROVEMENTS-VACATION OF STREET— COMPENSATION-STATUTES-CONSTRUCTION.
Laws 1895, p. 2037, c. 1006, providing for compensation for the discontinuance of streets, pursuant to the act, authorizes compensation for the closing of a part of a street, and making the remainder thereof a cul-desac, thereby legally closing an outlet, and depreciating the value of adjacent land.
[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 222; Dec. Dig. § 85.*]
13. EMINENT DOMAIN (§ 233*)-PUBLIC IMPROVEMENTS-COMPENSATION-AWARD -JURISDICTION.
The jurisdiction of the commissioners appointed pursuant to Laws 1895, p. 2037, c. 1006, to make compensation for the discontinuance of streets under the act, is limited by the order pursuant to the act to petitioners only.
[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 233.*]
*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexer
14. EMINENT DOMAIN (§ 127*)-PUBLIC IMPROVEMENTS-DISCONTINUANCE OF STREETS-COMPENSATION.
Where the claimant for damages for the discontinuance of a street, pursuant to Laws 1895, p. 2037, c. 1006, was the owner of the fee of the street discontinued, his damages must be assessed on the basis of the extinguishment of a public easement only.
[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 127.*]
15. EMINENT DOMAIN (§ 174*)-DISCONTINUANCE OF STREETS.
Under Laws 1895, p. 2037, c. 1006, authorizing the discontinuance of streets and providing for compensation therefor, streets in use are not discontinued until at least one street, bounding the block through which the discontinued street ran, is opened for public use.
[Ed. Note. For other cases, see Eminent Domain, Dec. Dig § 174.*]
Ingraham, J., dissenting in part.
Appeal from Trial Term, New York County.
In the matter of the application of the Mayor, etc., of the City of New York, relative to the acquiring of title to land to open Walton avenue. From an order confirming a special report of the Commissioners of Estimate and Assessment, embracing awards for damages for the discontinuance of streets in the vicinity of Walton avenue, and assessing the amount of such awards, together with the costs and expenses of the proceedings on the lands benefited by the discontinuance of the streets, the City of New York and Henry D. Clark, a property owner, appeal. Affirmed in part, and reversed and remitted in part. Argued before INGRAHAM, MCLAUGHLIN, LAUGHLIN, and HOUGHTON, JJ.
Thomas C. Blake (John P. Dunn, on the brief), for appellant City of New York.
Joseph A. Flannery, for appellant Henry D. Clark, and for said Clark and certain others as respondents.
Harold Swain, for respondents Margaret E. Webber and others.
LAUGHLIN, J. On the 18th day of March, 1897, an order was duly made and entered, appointing commissioners of estimate and assessment in proceedings for the opening and laying out of Walton avenue from East 167th street to Tremont avenue. Thereafter, from time to time, orders were made, on the application of property owners or of persons claiming to be interested in premises alleged to have been damaged by the discontinuance of certain streets in the vicinity of Walton avenue, appointing the same commissioners as commissioners to ascertain and determine the compensation to be awarded to the respective petitioners and to report the same to the court, pursuant to the provisions of section 14 of chapter 1006, p. 2051, of the Laws of 1895. The commissioners heard the claims and filed a special report on the 5th day of December, 1905. The city filed certain objections to the entire report awarding damages, and appellant Clark filed objections
to one of the awards. The objections were overruled, and the report was confirmed without modification. On the objections thus filed by the city questions are presented on this appeal with respect to whether rights to compensation for closing the streets have accrued, with respect to whether the streets were public streets and were open and in use as such, with respect to whether certain claimants were regularly before the commissioners and entitled to have their claims considered, and whether they were bound as to the amount of damages by the claims filed.
It is advisable to consider at the outset the statute under which Walton avenue was laid out and the streets are claimed to have been discontinued and the proceedings for ascertaining the damages sustained by closing the streets have been instituted.
Section 9 of the final maps of the Twenty-Third and Twenty-Fourth wards of the city of New York was duly filed in the various offices required by law on the 2d day of November, 1895. This map was validated by chapter 712, p. 859, of the Laws of 1896. See Matter of Mayor, 166 N. Y. 495-503, 60 N. E. 180. It had been prepared pursuant to the provisions of chapter 545, p. 965, of the Laws of 1890, as amended. By this map, part of Walton avenue described in this proceeding was laid out as a new proposed avenue. On the 12th day of June, 1895, prior to the filing of the map, chapter 1006, p. 2037, of the Laws of that year became in force. That act, in form, was general, and applied to the discontinuance and closing of streets, avenues, roads, highways, alleys, lanes, and thoroughfares in cities of more than 1,250,000 inhabitants, but, inasmuch as the city of New York was the only city having the population specified, its immediate application was to the city of New York only. The first section of the act authorized the local authorities of the city, in the manner therein provided, to discontinue
"such streets, avenues, roads, highways, alleys, lanes and thoroughfares therein as they may deem to be necessary in order to more effectually secure and preserve regularity and uniformity in the general and permanent plan of streets and avenues and public places therein, or where other public necessity, in the judgment of such local authorities, requires the discontinuance thereof in whole or in part. The local authorities referred to in this act are the department, commissioner, board or officer heretofore authorized or which may be hereafter authorized by law to lay out streets, avenues, public squares or places in that part or section of the said city in which such discontinuance has been or shall be proposed or determined."
The map was filed by the local authorities authorized to lay out streets, avenues, public squares, and places in the section of the city to which it relates, and this is not questioned. Section 2 of the act of 1895 provides as follows:
"Sec. 2. The local authorities authorized by law to lay out, open, extend, alter or improve streets, avenues, and roads in any such city or district thereof and to make and file a map or plan showing the streets, avenues and roads so laid out, opened, altered, extended or improved shall, upon any map so made and filed by them, designate only the streets, avenues and roads, which they may determine to so lay out, open, alter, extend or otherwise improve as the permanent streets, avenues and roads in and for such city, or for the particular district or section thereof shown upon such map or plan, omitting therefrom all such former streets, avenues, roads, highways, alleys, lanes