
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired for the Same Purpose in Fee to the Real Property Required for the Opening and Extending of Varian Avenue from Harper Avenue to Conner Street; Harper Avenue from Eden Terrace to the City Line; Secor Avenue from Boston Road to the City Line, Excluding the Right of Way of New York, Westchester and Boston Railway Company, and Conner Street from Pratt Avenue to Secor Avenue in the Borough of Bronx, City of New York. Julius Pezenik and Another, Appellants.
    First Department,
    November 9, 1934.
    
      Harry H. Chambers of counsel {Harry B. Chambers with him on the brief; Chambers & Chambers, attorneys], for the appellants.
    
      Jóhn H. Finn of counsel [Anson Getman and George S. Parsons with him on the brief; Paul Windels, Corporation Counsel, attorney], for the respondent.
   O’Malley, J.

The ruling that the petitioners, appellants, were entitled to only nominal damages because damage parcel No. 36 had been dedicated for street purposes and thereby burdened with private easements, was erroneous. The partition deeds referring to Secor avenue as laid down as a “ proposed street ” did not create an easement. (Matter of City of New York [ Northern Blvd.], 258 N. Y. 136; Matter of City of New York [E. 177th St.], 239 id. 119.) In the first of these deeds, given by the parties who were of age, it was specifically provided that reference to Secor avenue should not be deemed a dedication for street purposes and that no easements of any nature were created thereby.

Nor was an easement created by reference to the Burnside deed to Secor avenue as shown on the final maps of Bronx County,” and to the partition maps which showed Secor avenue as “ Proposed.” The land conveyed was fully described by metes and bounds. Reference to the final map and to the proposed avenue was by way merely of a convenient and definite “ description and location.” (Matter of City of New York [Northern Blvd.] supra, 148; Matter of Brook Avenue, 40 App. Div, 519; affd. on opinion below, 161 N. Y. 622; Matter of West 229th Street, 135 Misc. 710; affd., 235 App. Div. 608; 259 N. Y. 647; Matter of City of New York [E. 177th St.], supra.)

Moreover, it is to be noted that the whole parcel here involved had at the time of all conveyances, a frontage on two other streets, namely, Boston road on the south and Dyre avenue on the east. Hence no easement by implication was created. (Matter of City of New York [E. 177th St.], supra.) Damage parcel No. 36, therefore, had more than a nominal damage.

It follows that the order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted and the matter remitted to Special Term for reconsideration respecting the award for damage parcel No. 36, and the assessment for benefit.

Finch, P. J., Martin, Townley and Glennon, JJ., concur.

Order reversed, with twenty dollars costs and disbursements, and the motion granted, and the matter remitted to the Special Term for further action in accordance with opinion.  