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ten statement or claim for compensation, and a request that such proceeding be instituted for the ascertainment and determination thereof, or be forever barred from claiming compensation for such closing or discontinuance."
It is apparent that the object of the claim was not to procure a settlement thereof, but to have proceedings instituted to ascertain the damages sustained by the claimant. In that view, it seems that it was not vital to the validity of the claim that the claimant should state with accuracy the amount of the damages to which he deemed himself entitled.
Eighth avenue southerly of Jerome avenue was a cul-de-sac only a few hundred feet in length. The outlet to Jerome avenue was through this new block, through which it became legally closed by the filing of the map on the 2d of November, 1895, as has been shown. It ends opposite damage parcel 32, just southeast of the new Townsend avenue, as shown on said map. Damage parcels 32 and 33 are not in the block in question, but both front on Eighth avenue just beyond it. Their only outlet was through Eighth avenue northerly to Jerome avenue. This outlet became legally closed through the block within which streets became, according to the ruling already made herein, legally closed on the 2d day of November, 1895. The claims with respect to these two parcels, while not falling within the letter of the statute, fall within the fair intent and meaning thereof, because the part of Eighth avenue which remained open in front of those parcels was of no value as a means of ingress or egress to or from these parcels. I am of opinion that this construction will best accord with the legislative intent, and will be the most practicable. The only other construction that might be given is that Eighth avenue within the block became closed as to property owners within the block, but not as to other property owners. That would undoubtedly be a literal construction of the statute, but it would thwart the purpose of the Legislature in declaring that the part of the streets legally closed might be inclosed by the owner of the fee. I am of opinion that it was intended to terminate all public and private easements in that part of the street declared to be closed, and not merely to terminate those easements as to property owners within the same block and leave them outstanding as to other property owners, which would require that the streets remain open indefinitely, for there is no time limited within which the city must open the new streets, upon the opening of which only on this construction would the easements of these claimants in Eighth avenue through the block bounded by Jerome avenue be terminated. Another difficulty with this construction would be that the owner of a parcel in the block which we have been considering, or in a similar case who owned the fee of the discontinued street, would be awarded just compensation on the theory that he was at liberty to inclose the discontinued street, whereas he would be obliged to leave it open for ingress and egress to parcels of land in other blocks. These claimants were therefore entitled to have their damages assessed as of the date when their outlet through Eighth avenue was shut off by the closing of the northerly end thereof. The commissioners proceeded on this basis in making their awards, and I
erroneous theory, provided Eighth avenue within the block aforesaid became closed on the 2d day of November, 1895.
The claimants for the damages to damage parcels 32 and 34, the latter parcel being partly within the block in question, were Louis Brass and Emilie Hamann. An ejectment action was pending in the Supreme Court between these parties. The heirs of Emilie Hamann duly filed a claim and obtained an order to have their damages ascertained. The commissioners directed the payment of an award equal to twothirds of the total amount of damages to these heirs, provided they be successful in the ejectment suit and made no award as to the remaining one-third interest, apparently upon the theory that the other heirs entitled thereto were not before the commissioners; but in the event that the heirs should be unsuccessful in the ejectment suit, they awarded the payment of the total damages to Louis Brass, and, with respect to parcel 34, the commissioners made an award to two-thirds of the damages to said heirs, provided they should be successful in the ejectment suit, and made no award in the event they should be unsuccessful. This was upon the theory, as stated by the commissioners, that Louis Brass had obtained an order for the assessment of his damages with respect to parcel 32, but not with respect to parcel 34. Louis Brass does not appeal, nor does he even appear as to these parcels. The learned counsel for the city contends that no order was obtained as to either parcel, and none is found in the record. The only jurisdiction which the commissioners have to make an award is by an order obtained pursuant to the provisions of section 14 of the act of 1895, and by such orders they were limited to making awards to the petitioners. As there is no order in the record authorizing the commissioners to ascertain the compensation to which Louis Brass is entitled, there was no jurisdiction to make an award to him, and therefore the alternative award made to him with respect to parcel 32 must be vacated.
The city also claims that the commissioners erred with respect to the award made to John J. Schacht for damage parcel 39, shown on damage map No. 4. This parcel is on section 14 of the final maps of the Twenty-Third and Twenty-Fourth wards, filed in the office of the register of the city of New York on the 17th day of December, 1895, which was made pursuant to the same authority as section 9 of the final maps already considered. The damages are claimed on account of the closing of Punett street, which was not a street shown on either map of the village of Mt. Eden. This map indicated the former existence of Punett street within the block bounded by Jerome avenue, Tremont avenue, Walton avenue, and East 177th street, and shows that it was intended to be closed. Not only was this block bounded by Jerome avenue, but this parcel had a frontage on Jerome avenue, and the claimant owned the fee of Punett street. The award was made upon the basis that Punett street was an open public street and was closed by the filing of the map on account of the fact that Jerome avenue was retained as it previously existed; but the damages were awarded not as of December 17th, 1895, when section 14 of the final maps was filed, but erroneously as of November 2, 1895, when section 9, which did not embrace these lands, was filed. The city, however,
makes no point with respect to this. The observations already made show that Punett street, if it existed as a public street, was closed by the filing of the map on account of the fact that the block was bounded by Jerome avenue.
A serious question is here presented with respect to whether Punett street was a public street. The claimant, Schacht, took title to a plot of ground on the northeast corner of Jerome avenue and Waverly street in 1886, having a frontage of about 254 feet on Jerome avenue and 346 feet on Waverly street, extending in depth on the easterly line about 243 feet and on the northerly line about 283 feet. On the map filed by the department of public parks in 1879, to which reference has been made, Punett street was shown as intended to be laid out, but not as an existing street. It was to run from Waverly or 177th street to Burnside avenue, a distance of two blocks, passing across the southeasterly part of this parcel. The testimony of the claimant shows that when he took title to this plot he went to the department of parks and found this street laid out on said map, and thereafter and during the year 1886 he subdivided his property into lots upon a map and laid them out with reference to Punett street as plotted on said map. It does not appear that this map, made by the owner, was filed in any public office of the city, nor does it appear whether or not the lands embraced within the lines of Punett street, as thus plotted, have ever been exempted by the public authorities from taxation. The owner then sold off some lots on Jerome avenue, and one interior lot on Punett street, and another on the corner of Punett and Waverly or 177th street. In about the year 1902 he 'sold another interior lot on Punett street. These three lots were bounded on Punett street, but the fee to the street was retained by the grantor. In 1892 the owner built a stable on the part of the parcel lying southeasterly of Punett street, slanting the building at one point to accommodate it to the line of Punett street. The testimony of the claimant tends to show that Punett street for a distance of about 250 feet northerly of Waverly or 177th street was open and fenced by him, and actually used by the public from 1887 down until about the year 1902. It was neither paved nor graded, but, according to his and other testimony, gutters had been constructed along the sides, and it could be used by vehicles and persons on foot, and was so used. The undisputed evidence shows that the rest of this alleged street to the north was impassable and was never used by the public. It has not been shown by whom the gutters were made. There is some evidence in the record tending to show that from time to time workmen with wagons were seen in Punett street, near Waverly street, at work removing sand from the gutters which was washed down Waverly street by the storms, so that the water would flow off to the north; that these men at times filled holes in that part of Punett street which was open to public use, and cut the grass in the same; and that these men also worked on Waverly or 177th street and on Jerome avenue, which were public streets. There was no dwelling house on the street, and the only buildings were a carriage and wagon factory on the westerly side, on one of the parcels conveyed by the claimant, and a blacksmith shop on his
street was for access to these buildings. Said section 14 of the final maps shows Punett street as plotted on said map filed by the park department, and shows it closed.
It is quite clear that the plotting of Punett street as a new street on the map filed by the park department affected no right, title, or interest of the owner. Down to that time there had been no attempted dedication of these lands as a public street, and there was nothing for the public authorities to accept. As already observed, the map was prepared upon the theory that this was to be laid out as a new street, and not upon the theory that there was a dedicated street to be accepted. Assuming that the acts of the owner thereafter indicated an intention on his part to dedicate the street, it would seem that it would require some further act of the public authorities accepting the same. There being no evidence that the map prepared by the owner, with reference to which he sold his land, was filed so that it became a public record, it is doubtful whether he would have been estopped from claiming full value for the land had the city instituted condemnation proceedings. In view of the fact that the alleged street was merely a cul-de-sac and led only to these two places of business, the evidence with respect to the use of the street by the public is too meager to constitute an acceptance. The evidence perhaps gives rise to the inference that the men who worked on the street were employés of the city, but it is not entirely clear that the work they did was for the purpose of keeping the street in repair for public travel, and some of it, at least, indicates that they may have been trespassers, and that their object was merely to open the gutters to enable the waters to run from the public street. In any event, it was not such as to give rise to a presumption that it was authorized by the city. If, upon a rehearing, it should be established that this was a public street, it is to be borne in mind that the claimant, at the time it was closed, owned the fee, and it would seem that his damages should be assessed upon the basis of the extinguishment of the public easements only, for, owning the fee, he retained the same right of ingress and egress, and lost merely the benefit of having his property fronting upon a public street which presumably would be maintained as such.
All of the other awards were made for parcels within blocks shown on section 9 of the final maps of the Twenty-Third and Twenty-Fourth wards, wholly bounded by new streets and avenues which had neither been dedicated nor acquired by the city nor were in use as public streets at the time of the filing of said map. In each instance the commissioners have proceeded upon the theory that the streets which were intended to be closed and discontinued by this map became legally closed and discontinued when title to the first street or avenue bounding the block in whole or in part vested in the city, and in no instance is there any evidence that such street had been actually physically opened for public use. The city contends that the commissioners erred in ruling that the streets became legally closed, and that the right. to damages accrued to the owners upon title vesting in the city to one of the new streets bounding the block in part. I am of opinion that this point taken by the learned counsel for the city should be sustained. Although, as already observed, the Legislature has not, by sec
tion 2 of the act of 1895, provided in all cases that an open existing street was not to be closed until the property owner should be afforded access to his premises through a new street, yet, to the extent that an attempt has been made in this direction, it is upon that theory. It was evidently intended that streets then in use should not be discontinued until at least one street bounding the block should be opened for public use. This view was expressed by Mr. Justice Scott in Johnson v. Cox, 42 Misc. Rep. 301, 86 N. Y. Supp. 601, which was cited with approval by this court in Matter of City of New York (Jerome Avenue) 120 App. Div. 201, 105 N. Y. Supp. 315. Our decision in the last-mentioned case was modified by the Court of Appeals and affirmed. That court, however, agreed with our construction of the statute in this regard, and squarely held that the statute has reference to actual physical opening of the new street. Matter of City of New York, 192 N. Y. 459, 85 N. E. 755. All of the other claimants, therefore, at the time of presenting their claims, still retained the same right to use the streets which are to be discontinued that they theretofore enjoyed, and their claims were prematurely filed before any right of damages had accrued. With respect to these awards, as we view the evidence, the commissioners had no jurisdiction, and, were it not for the fact that it is evidence that the amount of the awards has been assessed upon property benefited, it would be unnecessary to refer the matter back to the commissioners, but on account of such assessments for benefits, it seems unavoidable that the matter must be remitted to the commissioners. On this matter, however, we have not been aided by the views of counsel, and it will receive further consideration, if necessary, on the settlement of the order.
It follows, therefore, that the order, in so far as it confirms the report of the commissioners as to awards for damage parcels Nos. 24, 28, 30, 33, and 34, should be affirmed, with costs to respondents separately appearing, and with respect to the awards made for damage parcel 32 other than to Louis Brass, it should be affirmed, with costs to respondents, and, in so far as an award is made to Louis Brass, it is reversed without costs, and with respect to the award for damage parcel 39, and with respect to all other awards, it should be reversed, without costs, and the matter referred back to the commissioners for a rehearing or to revise their report both as to awards and assessments of benefits, but the order is to be settled on_notice, and the direction with respect to referring it back to the commissioners may then be further considered, if necessary.
MCLAUGHLIN and HOUGHTON, JJ., concur.
INGRAHAM, J. (dissenting in part). The city of New York instituted this proceeding to acquire title to the real property necessary for the opening of Walton avenue from 167th street to Tremont avenue, in the city of New York. While that proceeding was pending, the owners of certain real property applied to the court to have commissioners appointed in this proceeding to determine the damage caused to certain property owned by them in consequence of the discon