
    In the Matter of the Application of the City of New York Relative to Acquiring Title, etc., for the Opening and Extending of West One Hundred and Seventy-second Street from Inwood Avenue to Jerome Avenue, etc. Fleischmann Realty Company, Inv., Appellant; The City of New York, Respondent.
    First Department,
    February 11, 1916.
    Municipal corporations — street opening proceedings, city of New York — dedication of land for public use — evidence insufficient to establish, such dedication — award for land taken for street purposes.
    A dedication of real estate for public use may be established by written or oral declarations or by the acts of the parties holding the title. But in either case before the conclusion can be reached that there has been an actual dedication it must appear that such was the intent of the parties to the grant, and in determining whether such was the intent the court will always take into consideration the condition of the land, the situation of the parties and the circumstances attending the transaction. Evidence relating to, and conveyances of, a certain tract of land examined, and held, to establish that there never was an intent on the part of any of the owners to dedicate such land to the public..
    An award made for land taken for street purposes examined and approved.
    Appeal by Fleischmann Realty Company, Inc., from so much of 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 5th day of March, 1914, as sustains objections to the confirmation of the report of the commissioners of estimate herein as to the awards for damage parcels Nos. 2 and 2A and directs the return of the report to said commissioners for revision and correction.
    
      
      I. E. Bermant, for the appellant.
    
      Joel J. Squiér, for the respondent, the city of New York.
   McLaughlin, J.:

On the 17th of December, 1895, the commissioner of street improvements, under the authority conferred by chapter 545 of the Laws of 1890, as amended, filed in the office of the register of the county of New York a map showing the location, width, grades and class of streets laid out and adopted for the twenty-third and twenty-fourth wards of the city of New York. One of these streets was West One Hundred and Seventy-second street, which, as laid out on the map, embraced Walnut street, so called, fifty feet in width and also adjacent land on the south side to a depth of ten feet. Walnut street had been previously laid out on a map of private property, but the fee to it had never been acquired by the city. In April, 1905, a tract of land comprising what is designated in the record as block 2858, which was bounded on the north by Walnut street and included the ten-foot strip above referred to in West One Hundred and Seventy-second street was owned by Edward L. Woolf and others. By a deed dated April 18, 1905, recorded May 5, 1905, Woolf and his associates conveyed this tract, exclusive of the ten-foot strip, to one Koenigsberger. The deed specifically referred to the map filed by the commissioner of street improvements in 1895 and one side of the land conveyed was bounded by the south side of West One Hundred and Seventy-second street,'as laid out on said map. Koenigsberger gave to his grantors, by the same description contained in the deed, a purchase-money mortgage for $105,000, which was made and recorded on the same dates as the deed. On the same day, subject to the mortgage, Koenigsberger conveyed such land to the appellant herein. By a deed dated May 10, 1905, and recorded May 15,1905, Woolf and his associates conveyed to the appellant “all their right, title and interest” in the ten-foot strip to which reference has been made. The appellant, on the 24th of December, 1907, conveyed both of these parcels to the Leicester ¡Realty Company, and on the 4th of February, 1908, the ten-foot strip was reconveyed to the appellant. Sometime thereafter Woolf and his associates foreclosed their mortgage and at the foreclosure sale Woolf purchased the land. On the 1st of April, 1913, the city acquired the fee to West One Hundred and Seventy-second street as laid out on the map filed by the commissioner of street improvements in 1895. At this time the appellant owned the fee to the ten-foot strip of land included in the new street, and Woolf was the owner of the land purchased by him at the foreclosure sale. In the proceedings instituted by the city for the purpose of acquiring the title to the ten-foot strip, two separate damage numbers, 2 and 2A, were given to it—the latter designating a portion of the parcel subject to a sub-surface sewer easement. After proceedings had before them the commissioners of estimate and assessment filed a report awarding the appellant damages in the sum of $5,541.58 — $4,252.50 for parcel damage 2 and $1,289.08 for parcel 2A. The respondent opposed the confirmation of the report awarding these damages on the ground, among others, that the two parcels in question were burdened with street easements, and for that reason only nominal awards should have been made. The learned justice at Special Term was of the opinion that the description of the land contained in the deed from Woolf and his associates to Koenigsberger indicated an intention on the part of the former to dedicate the ten-foot strip to the public, and only a nominal award of damages should have been made to the owner. He refused to confirm the report of the commissioners in so far as the same awarded damages to the appellant, and sent the matter back for revision and correction. It is from this order the appeal is taken.

I am of the opinion the order, in so far as appealed from, should be reversed, and the motion to confirm the report granted. The record does not disclose any evidence that Woolf and his associates intended to dedicate the fee of the ten-foot strip to the public, or that the city ever acted upon the assumption that such dedication had been made. A dedication may be established by written or oral declarations, or by the acts of the parties holding the title. (Flack v. Village of Green Island, 122 N. Y. 107; Holdane v. Trustees of Village of Cold Spring, 21 id. 474.) But in either case, before the conclusion can be reached that there had been an actual dedication, it must appear that such was the intent of the parties to the grant, and in determining whether such was the intent the court will always take into consideration the condition of the land, the situation of the parties and the circumstances attending the transaction. (Matter of Brook Avenue, 40 App. Div. 519; affd. on opinion blow, 161 N. Y. 622.)

Applying this rule to the question here under consideration it at once becomes apparent, as it seems to me, there never was an intent on the part of any of the owners of the ten-foot strip to dedicate it to the public. The fact does not seem to he contradicted —■ and if so, the evidence clearly shows — that in so far as Koenigsberger was connected with the conveyance to him he was a dummy for the Meischmann Realty Company, Inc., the appellant; that such company desired to purchase the property for the purpose of erecting buildings thereon, and prior to its purchase looked over the property and was informed by the owners that the sale would include the whole tract owned by them; that the contract of sale was entered into with this understanding, and the consideration agreed to be paid was $125,000. Shortly before the contract was closed by the execution and delivery of the deed to Koenigsberger the appellant objected to the description of the property as contained in the contract of sale and in the proposed deed to it. The objection was based upon the fact that the description did not include the ten-foot strip, and for that reason the realty company refused to take the title. Negotiations were then entered into between Woolf and his associates and the realty company, having for its object the acquisition of the title to such strip. Such negotiations finally culminated in an agreement on the part of Woolf and his associates to convey the strip to the realty company for the consideration of $2,500. The conveyance to Koenigsberger was then made and subsequently the conveyance of the strip to the realty company, when the $2,500 was paid.

These facts indicate, as clearly as anything can, that there was no intention on the part of any of the parties concerned in the transaction to dedicate this strip to the public. If this conclusion be correct, then the realty company was the owner of the strip and the city could only acquire the title by paying therefor. The award made by the commissioners was justified by the evidence, cannot be said to be excessive, and their report should have been affirmed.

The order, in so far as appealed from, is, therefore, reversed, with ten dollars costs and disbursements, and the motion to confirm the report granted, with ten dollars costs.

Clarke, P. J., Laughlin, Dowling and Smith, JJ., concurred.

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