
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, etc., to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Vanderbilt Avenue, West (Although Not Yet Named by Proper Authority) from East One Hundred and Seventy- third Street to Pelham Avenue, etc., in the Twenty-fourth Ward of the City of New York. In the Matter of the Petition of Elizabeth Ransford, Respondent, for Damage to Lot No. 65, in Block No. 3028, etc.; The City of New York, Appellant.
    
      Highway • — award by municipality "to-abutting owner for damage ip a private easement because of the discontinuance of a public road over the servient land. '
    Appeal from, an order confirming the' report; of commissioners awarding to Elizabeth Ransford, an abutting owner, §2,000 as-compensation for the destruc-, tion of her private easements caused by the discontinuance - of an. old road in , front of her premises.
   Order affirmed, with ten dollars costs and disbursements, on the authority of Matter of Mayor, Vanderbilt Avenue (95 App. Div. 533)..' Present—Patterson, P. j., Ingraham, McLaughlin, Clarke and Lambert, JJ.; Ingraham and Clarke, JJ., dissented.

Ingraham, J.

(dissenting):

The respondent has been awarded §3,000 to compensate her for a private easement that she had in a piece of property which had been used as a road or highway and which she claims has been destroyed because the city of New York had discontinued the use of thatroad as a public highway, but the city of New York has not in any way interfered with respondent’s private easement in this road. It has discontinued the use of the road as a public road. The respondent sustained no damage because of such discontinuance and, no damage has been awarded to her by reason of the discontinuance of the public road. She acquired this easement over the strip of land, that was used as a road as appurtenant to the property which she acquired. No act of the city or of the public authorities either granted her that easement nor has the easement which is vested in her appurtenant to her estate been destroyed'. Money raised by taxation is thus paid to the respondent to relinquish a private easement appurtenant to her land in the land of another, so that the owner of the servient estate can own his land discharged of the easement. When this case was before, this court' on the former appeal (95 App. Div. 533) I dissented from the order then made and I dissent from the affirmance of the order here granted for the reasons stated' upon that appeal. If chapter 1006 of the Laws of 1895 affected this respondent’s private easement acquired by virtue of her deed conveying the property to her, I think it was clearly unconstitutional; but certainly the provision which required the city of New York to raise by taxation and to pay to this respondent any sum of money as the value of the private easement not acquired by the city and not .affecting any property of the city is an express violation of section 10 of article 8 of the Constitution, which provides that “No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation * *- * nor shall any such county; city, town or village be allowed to incur any" indebtedness, except for county, city, town or village purposes.” Money of the city of New .York raised by taxation is devoted in this case to pay to this respondent the value of a. private easement appurtenant to her property and of which property not owned by the city and in which the city has no interest is servient, I do not think that such a payment is authorized by chapter 1006 of the Laws of 1895, but if it is, it is clearly a violation of the Constitution. I, therefore, dissent. Clarke, J., concurred.  