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20 years prior to 1902 and that Walnut street was lighted by gas lamps. There was no evidence of any attempt on the part of the property owners to revoke the dedication attempted to be made by filing the maps. It has not been specifically shown that the beds of those streets and avenues have not been taxed, but, since the maps became public records and conveyances were made of the lots as abutting and bounding thereon, that would be a fair inference. It is quite clear, I think, that these avenues and this street were duly dedicated and were duly accepted by the city authorities, and that they were in use as public streets on the 2d day of November, 1895, when section 9 of the final maps of the Twenty-Third and Twenty-Fourth wards was filed.
The city further claims that the commissioners erred in their awards with respect to some of the parcels which are partly within this block and partly within the lines of one of the new streets, as laid out on said section 9 of the final maps of the Twenty-Third and TwentyFourth wards bounding it. As already observed, neither Townsend avenue nor East 172d street, which bound the block on two sides, were public streets when said maps were filed. The city showed that, by proceeding duly had under the charter, the title to Townsend avenue vested in the city for public street purposes on the 6th day of September, 1897, and East 172d street on the 4th day of December, 1897, and that proceedings were duly had to determine the awards to be made to the property owners, and that the awards had been made and confirmed. The city gave evidence tending to show that in those proceedings the owners of these parcels who now claim damages upon the theory that Seventh and Eighth avenues and Walnut street were closed on the 2d day of November, 1895, gave evidence of their damages to the parcels, part of which were taken in the proceedings to open Townsend avenue and East 172d street, upon the theory that Seventh and Eighth avenues and Walnut street were then open and that they had valuable easements therein of light, air, and access. After receiving this evidence, the commissioners in this proceeding refused to consider the basis upon which the other commissioners made their awards. They say with respect to this in their report:
"We have not considered it necessary to determine whether in street opening proceedings, where portions of plots for which we have awarded damages were acquired after such plots were damaged by the closing of streets on which they abutted, the awards were made in such proceedings on the assumption that such lands still had easements of light, air, and access over the streets for which we have awarded damages."
The city claims that this was error. It is not claimed that the record, other than the testimony in the other proceedings, showed that any of the awards were made upon the theory that Seventh and Eighth avenues and Walnut street were then open. The city does not claim that the landowners are estopped from now claiming that these avenues and this street were closed. It merely contends that the commissioners should have considered the fact that the landowners introduced evidence upon the theory that these avenues and this street were then open, and that it is probable that such evidence influenced the awards and resulted in an increase of the awards over the dam
ages to which the owners were entitled upon the theory upon which the landowners have made claims in this proceeding, viz., that these avenues and this street were closed by filing the maps. There being no estoppel of record, it would seem that the commissioners in this proceeding acted upon the correct rule. The remedy of the city was to present the question in the other proceedings and have an adjudication of record thereon which would probably have constituted an estoppel. I think it should now be presumed that the awards in the other proceedings were made upon the proper basis, and that the commissioners in this proceeding were not at liberty to speculate as to what, if any, additional compensation the owners received in the other proceedings over and above that to which they were legally entitled upon the construction of the statute with respect to the time of closing adopted by the commissioners in this proceeding.
In determining the just compensation to be awarded to the owners of lands, the damage parcels show the parcels as they stood at the time the maps were filed which closed the avenues and street within the boundaries of this block. After the commencement of this proceeding and before the awards in question were made, the city acquired parts of some of these parcels for Townsend avenue and for 172d street, but, notwithstanding that fact, the damage parcels were considered intact, and evidence was received tending to show the damages to those parcels as they existed at the time the avenues and streets were legally closed, namely, the date of filing the map pursuant to the provisions of chapter 1006 of the Laws of 1895, and evidently the awards were made as of that date, without taking into consideration the fact that subsequently to that date parts of the parcels had been acquired by the city as aforesaid. As I understand the record, no question was raised on the hearing before the commissioners or at Special Term, or by the appellant in this court, with respect to the right of the owners to recover damages to the parcels as they existed at the time the avenues and streets became legally closed. The only claim made by the city in this regard was, as had already been stated, that the commissioners should have taken into consideration the probability that these landowners received awards in the other street opening proceedings on erroneous theories, and that, therefore, if awarded on the correct theory in this proceeding, they will receive more than just compensation. The city, of course, does not concede the correctness of the view herein expressed that the avenues and street in this block were closed upon the filing of the map, on account of the fact that Jerome avenue bounded the block in part and was a public street, opened and in use; but the city claims that if this be the proper construction of the statute, then these landowners received awards in the other proceedings upon an erroneous theory and will thereby obtain more than their actual damages. The right of the claimants to damages as of the time the avenues and street were legally closed, and to their respective parcels as they existed at that time, has been questioned, however, during the consideration of the appeal, and requires attention. I am of opinion that the parties and the commissioners proceeded upon the correct theory in this regard. The moment the avenues and street became
tue of the provisions of sections 4 and 14 of chapter 1006 of the Laws of 1895. Ordinarily, where lands or easements therein are acquired for public purposes, the private title or easements are not extinguished until just compensation there for has been made; but where the right of eminent domain is exercised by the state or a political division of the state, the Legislature at times provides for the extinguishment of the title and easements at a fixed time in advance of the making of just compensation, and gives the owner, as a substitute for his land or easements, an adequate remedy for damages. Chapter 1006 of the Laws of 1895 contemplates the extinguishment of both public and private easements in discontinued streets in advance of the making of just compensation, and upon the legal discontinuance of the street the Legislature has, by section 4 of the statute, made it the duty of the corporation counsel to forthwith institute condemnation proceedings for determining the just compensation to be made for the interests ac quired; and by section 14 of the act, under which these claimants are in court, either the corporation counsel or the property owners could ask, in a proceeding of this nature, to have the just compensation that should be made for the closing of the street determined by the commissioners appointed to open the contiguous street, which Walton avenue concededly is. If, as I think, the right to compensation accrued to the owners the moment the avenues and street became legally closed, then it is quite clear that the just compensation to which they are entitled has to be made as of that time. Their damages con-sisted in the depreciation of the value of their lands by the legal clos-ing of the avenues and street and the termination of every right they had to have them maintained as public avenues or streets or to use the same for ingress or egress to their respective parcels. Whether the owners of the fee of the discontinued avenues and street did or did not inclose the same, as authorized by the statute, or prevent the use of the same for ingress or egress to the parcels of the respective claimants, therefore, is quite immaterial. The avenues and street being legally closed, the right to actually close them existed, and any further user, if there was further user, which I think does not appear, was by sufferance and not as matter of right. The statute being constitutional, and the avenues and street having been legally closed, which terminated the rights of the property owners therein, the Legislature has substituted for those rights a claim for just compensation, to be asserted under a statute. This was a personal claim which accrued to the owner of the property at the time of the legal closing of the avenues and street and the cutting off of his rights therein by the filing of the map. The just compensation to which each owner is entitled is the depreciation in value of his parcel of land by the legal closing of the avenue or street, and the right thereto accrued at once, without regard to the question as to whether the streets were thereupon actually closed, as they might have been, or whether the property owners were permitted to continue to use them, and regardless of whether or not the owner continued to hold the title to the parcel which was damaged by the closing of the avenue or street, or whether or not he thereafter parted with title voluntarily or title was taken from him in invitum, for those considerations could not affect the
quantum of damages or the right thereto, which does not run with the land. King et al. v. Mayor, 102 N. Y. 171, 6 N. E. 395; Matter of Grade Crossing Commissioners, 64 App. Div. 71, 71 N. Y. Supp. 674, affirmed 169 N. Y. 605, 62 N. E. 1096; Johnson v. Pettit, 120 App. Div. 774, 105 N. Y. Supp. 730; Matter of City of New York (Newton Creek Bridge), 128 App. Div. 150, 112 N. Y. Supp. 531; Matter of Mayor (Trinity Avenue), 116 App. Div. 252, 101 N. Y. Supp. 613; Harris v. Kingston Realty Co., 116 App. Div. 704, 101 N. Y. Supp. 1104; Matter of Seventh Ave., 59 App. Div. 175, 69 N. Y. Supp. 63. See, also, Wenrenberg v. Seiferd, 125 App. Div. 527, 109 N. Y. Supp. 896. The city does not claim that on the evidence and upon this theory the awards for these parcels are excessive. It only claims, as already stated, that the commissioners should have taken into consideration the fact, which the city claims is indicated by the evidence before the commissioners in the other street opening proceedings, that in those proceedings these owners received awards upon a different theory, and that if they are now given awards on this theory it will result in their getting more than the amount to which they are entitled, and, in effect, to a certain extent, double damages; but, as has been observed, that question could not properly be considered by these commissioners.
If it were not for other special objections to some of the damage. parcels in this block, which will be considered presently, these views would lead to an affirmance as to all parcels within the block in question which embraces parcels Nos. 24, 28, 29, 30, and 34. There are no further objections to the awards for parcels Nos. 28 and 30.
An award was made for damage parcel 29 to Henry D. Clark as owner. Clark is appellant with respect to an award made for another parcel not in this block, and is respondent with respect to this and one other appeal. The learned counsel for the city asserts in his points that no proof, either of Clark's title or of his damages to this parcel, was made. The learned counsel for Clark, as respondent, refers us to no part of the record containing such proof, and we have been unable to find any. The city, by its objections duly filed, challenged this and other awards upon the grounds, among others, 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. A specific objection was also made in a separate paragraph to the effect that the award was made upon the erroneous theory that Seventh avenue was closed. That, however, was not a waiver of the general objection. The respondent Clark was the moving party, and it was incumbent upon him to show his title and his damages. Having failed to do so, the award must be vacated.
An award of $9,040 was made for damage parcel 24 in this block to Henry Edelmuth, as sole executor of Adolph Edelmuth. The ob jections filed to the report of the commissioners by the city relate to all of the parcels for which awards were made. The learned coun sel for the city, in his statement of the facts, questions the jurisdic tion of the commissioners to make an award for a greater sum than
arate point presenting this question is not contained in his brief. The learned counsel for respondent Edelmuth, however, assumes that this question would be presented, and concedes that the claim filed with the comptroller, which is not in the record, was for $2,000 only. The commissioners, in their report with respect to this award, say:
"We have determined that Henry E. Edelmuth, as the executor of Adolph Edelmuth, deceased, is entitled to the award made for damage parcel No. 24, notwithstanding that said award is greater than the amount specified in the claim filed by him, as the claim filed by some of the parties who are beneficially interested in this award gave sufficient notice."
It is to be observed that the executor is acting in a representative capacity, and it is urged that the innocent beneficiaries should not in any event suffer on account of his failure to specify a claim for an adequate amount of damages. The statutory provision with respect to filing claims is contained in section 5 of said chapter 1006 of the Laws of 1895. It is not entirely clear, in my opinion, that this section relates to a street discontinued—as were the streets in question-by their omission as streets from a map showing a permanent plan of the streets to be retained and opened in a particular section of the wards in question, pursuant to the provisions of law applicable thereto. There is no room for argument that section 5, with respect to filing claims, relates only to streets discontinued pursuant to the provisions of section 3 of said act after the filing of a map or plan of permanent streets, for section 4 of the act requires that the city institute proceedings to ascertain the damages caused by the closing or discontinuance of streets which are closed or discontinued by the filing of a final map of a permanent plan pursuant to section 2, and a similar provision is contained in said section 5 with respect to streets discontinued or closed by filing any map pursuant to that act. This constitutes a repetition, unless section 5 relates to streets closed or discontinued as provided in section 3, in which case there would be reason for requiring the presentation of a claim because the landowner could not institute the proceedings himself, as he may here, where the plan involves opening new streets. Moreover, the claim is required to be filed, not to be audited as are other claims, but to have proceedings instituted by the city to have his damages appraised. But under section 14 the property owner may himself institute the proceeding, and hence there seems in those cases to be but little, if any, reason for requiring the city to institute it. Section 5 appears to have been deemed applicable to all such claims in the cases which have heretofore been before the court (Matter of Spuyten Duyvil, 116 N. Y. Supp. 857, and Matter of Mayor, 95 App. Div. 533, 88 N. Y. Supp. 769), and perhaps it is no longer an open question in this court.
It is, however, I think, unnecessary to consider this question further, for, assuming that it was necessary that the claim should be filed, I am of opinion that the claim filed was sufficient to authorize the commissioners to award the actual damages. The provision of section 5 with respect to filing claims is as follows:
"Provided, however, that within six years after the filing of such map any owner or owners interested and affected by such discontinuance and closing shall present to the chief financial officer or comptroller of such city a writ