
    Simeon M. Barber, Appellant, v. James A. Woolf and Others, Defendants. George B. Heath, Purchaser, Respondent.
    First Department,
    May 7, 1915.
    Municipal corporation — street closing proceedings, city of New York — extinguishment of private easements.
    Street closing proceedings in the city of New York, under chapter 1006 of the Laws of 1895, are not intended and do not operate to extinguish purely private easements resting upon actual or presumed grants; but where, upon a proceeding to close a street which has never actually or legally been opened to the public, an abutting owner alleges that his private easements of light, ah- and access over the street in question have been extinguished by the filing of the final map, and he is awarded damages upon such theory, said easements will be deemed to have been extinguished, and the owner or any successor in interest will be estopped from ever claiming any easements over the discontinued street.
    Appeal by the plaintiff, Simeon M. Barber, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1915, granting the motion of a purchaser at a tax lien sale to be relieved of his bid.
    
      
      Harold Swain, for the appellant.
    
      George E. Coney, for the respondent.
   Scott, J.:

The respondent purchased at a tax lien sale a piece of real property which formerly lay wholly within the lines of Seventh avenue as laid down on a private map known as the map of Mt. Eden, filed in 1854, and subsequently shown as Bockwood street on a public map filed by the park department in 1819. The lot in question lay in front of and abutted upon a lot known as lot Mo. 51 on the Mt. Eden map, which was conveyed by a description referring to that map, in 1855, by Thomas 0. Woolf and others, who had made and filed the map, to Isaac Minzesheimer, from whom Charles Minzesheimer obtained title by mesne conveyance in 1880. Said Seventh avenue or Bockwood street was-never actually or legally opened as a public street, but it is conceded that by the deed to him Isaac Minzesheimer acquired, as appurtenant to the lot which he acquired, private easements of light, air and access over that portion of the proposed street shown on the Mt. Eden map as lying in front of and abutting upon said Seventh avenue or Bockwood street. The respondent’s objection to the title of the lot from the purchase of which he seeks to be relieved, is that it is still incumbered by said private easements, and is, therefore, unmerchantable and practically worthless.

When the final maps were filed in 1895, the said Seventh avenue or Bockwood street was shown as discontinued, and Minzesheimer’s lot was left in the middle of a block as laid out on the permanent plan, without any means of access or egress except over said Seventh avenue or Bockwood street. After the filing of the map in 1895, the city of Mew York instituted a proceeding to open Walton avenue, which involved proceedings under chapter 1006 of the Laws of 1895, to close a large number of streets and avenues shown on that map as haying been discontinued. It has been repeatedly held that such proceedings did not operate to extinguish purely private easements such as those which Minzesheimer had acquired over the bed of Seventh avenue or Bockwood street (Johnson & Co. v. Cox, 196 N. Y. 110; Matter of Olinger, 160 App. Div. 96; Matter of City of New York [Grand Boulevard], Id. 80; affd., 212 N. Y. 538), although it is claimed that doubt has been cast upon the proposition by some expressions used in the opinion of the Court of Appeals in the last-mentioned case. Whether or not those expressions were intended to be understood as questioning the rule it was not expressly disaffirmed, and it must he accepted as the present law as declared by this court and the Court of Appeals that street closing proceedings under the act of 1895 are not intended and do not operate to extinguish purely private easements resting upon actual or presumed grants.

The respondent’s objection to the title would, therefore, be perfectly valid were it not for another circumstance upon which appellant relies.

The proceeding above referred to as having been instituted to legally close discontinued streets was known as Matter of Mayor, etc. (Walton Avenue). It went through this court (131 App. Div. 696) and the Court of Appeals (197 N. Y. 518). Charles Minzesheimer, the then owner of the lot described as No. 51 on the Mt. Eden map, petitioned, as he had a right to do under the Street Closing Act of 1895, for an award of the damages which he would suffer. In this petition he set forth his title and showed that in the conveyance under which he claimed the lot known as No. 51 acquired by him designated the said property by reference to the map number on said map, and bounded the same in front on the westerly side by the street shown on said map as Seventh avenue. He set forth that “by virtue of said deed, petitioner became possessed of and interested in all rights, easements and privileges appertaining to said premises, including the usual and ordinary street easements of light, air and access as appurtenant to said premises.” He further set forth, referring to the filing of the final maps in 1895, that thereupon said Seventh avenue, or Eockwood street, and said Walnut street, or East One Hundred and Seventy-fourth street, were omitted and shown as discontinued, closed and abandoned, and that pursuant to the provisions of chapter 1006 of the Laws of 1895 said Eockwood street and said East One Hundred and Seventy-fourth street were thereafter “discontinued, closed and abandoned, both as public and private highways, and all easements of light, air and access and rights of way of every nature were extinguished and destroyed as hereinafter stated.” He further alleged that by reason of the steps taken, as therein set forth, by the local authorities of the city of New York “the aforesaid easements in and to said Walnut Street or East One Hundred and Seventy-fourth Street and in and to said Seventh Avenue or Bockwood Street as appurtenant to said lot have been extinguished and destroyed, and the owner of the soil of said discontinued streets and avenues is now vested with the absolute fee title thereto.” He further set forth the facts showing that the said closing took effect on November 2, 1895, when section 9 of said final map was filed, as provided by law, Jerome avenue, one of the streets bounding the permanent block in which said premises lay, being then an opened street.

The report of the commissioners awarding damages to said Charles Minzesheimer, as stated in the moving affidavit, expressly stated the theory upon which the award was made. It stated, in substance, that where the person to whom the award was made was the owner of the entire property the award represented the entire loss and damage which the owner affected by the abandonment, discontinuance and closing had suffered. It stated that the commissioners had assumed that where, at the time of the filing of the final maps, there was an open, existing street which was also shown on the permanent plan and which bounded the block or plot in which the discontinued street was situated, the streets and avenues for whose discontinuance and closing damages were awarded, became discontinued and closed upon the filing of said final maps, and that the portions of Seventh avenue, Walnut street and Eighth avenue contained within the block bounded by Jerome avenue, East One Hundred and Seventy-second street, Townsend avenue and Belmont street were closed and discontinued upon the filing' of the final maps, to wit, November 2, 1895. Said report contains the following clause: “We further report that our awards herein are based on the assumption that upon the discontinuance and closing of the streets or avenues for whose discontinuance and closing we have awarded damages, such parts or portions thereof as are included within the boundaries of any square or plot of ground made by the intersection of any streets, or .avenues laid out by the local authorities upon the permanent map or plan of the city, were no longer streets or avenues for any purpose whatever and that the owner in fee of the land or soil within the boundaries thereof became entitled thereupon to inclose, use and occupy the same to the exclusion of all others and that all easements of light, air and access in the same were thereupon extinguished.”

The commissioners awarded Mr. Minzesheimer, for his damages aforesaid, a very substantial sum ($1,200); their report was confirmed and the amount of the award was paid to and accepted by said Minzesheimer. There can be no doubt that the damages referred to were claimed by Minzesheimer, and awarded to him by the commissioners upon the theory, very generally accepted when the report was made, that the effect of filing the map of 1895 was to extinguish all easements, private as well as public, over the streets and avenues shown on said map as discontinued, whether such streets and avenues had been actually opened or not. Such is the plain meaning of Minzesheimer’s petition and the commissioners’ report, and upon no other theory can the substantial award made to Minzesheimer be explained. Under these circumstances it is clear that Minzesheimer or any successor in interest would be estopped from ever claiming that there still remained as. appurtenant to his lot No. 51 any easements, public or private, over the plot of land which the respondent has purchased. Public easements there never were, and for his purely private easements he has claimed and been paid compensation. Under these circumstances, peculiar to this case, we are of opinion that the title to the lot purchased by respondent is not unmerchantable.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  