
    In the Matter of the City of New York, Relative to Acquiring Title to Real Property from James Street to Other Streets in the Borough of Manhattan.
    Supreme Court, Special Term, New York County,
    December 17, 1965.
    
      Leo A. Larkin, Corporation Counsel (Robert D. Joyce of counsel), for City of New York.
   Joseph A. Sarafite, J.

This is a condemnation proceeding. The City of New York petitions the court to fix the amount of compensation for the restoration of easements of light, air and access to certain land resulting from the demolition and removal of the Third Avenue elevated structure.

Chapter 606 of the Laws of 1875 (Rapid Transit Act) vested the New York Elevated Railway Company with a franchise to construct and operate a railroad on an elevated structure. At various times thereafter (1888-1907) the company and its successors paid to abutting property owners on Third Avenue damages for the future impairment in perpetuity of their easements of light, air and access. The value of the right to impair these easements at the time of the original acquisition was $4,605,850.90. Thereafter, in 1913, upon the installation of a third track to the structure, additional damages were paid in the sum of $815,011.86. These payments were made pursuant to judicial awards.

In 1940, the City of New York purchased the railroad and succeeded to all the legal rights then held by the private owners.

Under chapter 657 of the Laws of 1955 the Legislature amended the Administrative Code of the City of New York— by adding section 141-6.7 — to authorize the Board of Estimate to acquire by condemnation as an assessable improvement * * * the right to demolish and remove the elevated railroad structures ” from St. James Place to a point near 132nd Street in the Borough of The Bronx “ Together with the * * * railroad bridge over the Harlem river.” It further provides that compensation be made to the owner for “ the cost of acquiring, removing and demolishing the same, provided, however, that there shall not be assessed against the local area benefited * * * in addition to the cost of demolition and removal, an amount greater than the value of the right to impair easements of light, air and access which [right] the city shall acquire the right to extinguish ’ \

In sum, the railroad company originally paid awards to the abutting owners for the right to obstruct permanently the easements of light, air and access which the abutting owners had in the city street. By section 141-6.7 the city has compelled the removal of the structure and thus the easements of the abutting owners are being relieved of the obstruction for which compensation had been paid by the railroad company. The removal of that burden thereby creates an increment to the value of the abutting property.

Subsequent to the enactment of chapter 657, on June 23,1955, the Board of Estimate passed a resolution directing the Corporation Counsel of the City of New York to institute this proceeding pursuant to section 141-6.7 of the Administrative Code of the City of New York. In addition, the resolution also provided that the entire cost of the proceeding be apportioned by assessing one third on the local area of assessment, one third upon the Borough of Manhattan, and one third upon the City of New York. This contrasts with the fact that the owners of such property originally received awards for the impairments on the basis of one hundred cents on the dollar whereas the present owners of the same properties are now being asked to pay only one third of the cost of the taking.

Title to the right to demolish and remove the structure together with the right to extinguish the impairment of easements vested in the City of New York on July 29, 1955. ■

Thereafter, the City of New York received from a contractor the sum of $330,665 for the cost of the right to demolish and take the structure. For the cost of extra work performed in connection with the removal of the bridge across the Harlem River, the city paid the contractor the sum of $27,702.88, thus netting the city $302,962.12 ($330,665 less $27,702.88).

The standard for fixing damages for the loss of easements of light, air and access — easements acquired by the railroad from the abutting owners — was laid down in Matter of City of New York (E. 42d St. El. R. R.) (265 N. Y. 170 [1934]). There, upon the condemnation and removal of the 42d Street spur, the railroad company was awarded damages to the extent of being reimbursed on the ‘ ‘ basis of the value judicially determined at the time of the original acquisition of these rights ” (p. 180).

Applying that standard to the instant proceeding, the court makes the following calculations:

For the cost of the taking of the original easements of light, air and access (based on original judicial determinations) 57,912.2 lineal feet at $79.53 per lineal foot.................................$4,605,850.90

For the cost of the taking of additional easements for adding the third track..................... 815,011.86

5,420,862.76

Credit against this sum, the net amount received by the City of New York from the contractor... . 302,962.12

$5,117,900.64

As heretofore noted, in the case now before this court, whatever rights the railroad company had in the Third Avenue line are now owned by the city.

Accordingly, the court makes a tentative award to the City of New York in the sum of $5,117,900.64.

The Corporation Counsel.is directed to prepare and submit a tentative decree to be prepared in accordance with the resolution of the Board of Estimate adopted on June 23, 1955 Calendar No. 1.  