
    Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Mount Vernon Avenue (Although Not Yet Named by Proper Authority) From Jerome Avenue to the Northern Boundary of the City of New York, as the Same Has Been Heretofore Laid Out and Designated as a First Class Street or Road in the Twenty-fourth Ward of the City of New York.
    (Supreme Court, New York, Special Term,
    January, 1907.)
    Eminent domain — Condemnation proceedings — Discontinuance of street opening proceedings'—Right of corporation — Discontinuance in part.
    Where, by reason of the inability of the city of New York to condemn lands of the Woodlawn Cemetery for a public street, an irregular strip of land, designed to be used in connection with lands taken from the cemetery, becomes valueless to the municipality, the city has the right and should be allowed to discontinue the proceeding so far as it relates to such strip, without being compelled to abandon its proceeding in toto.
    
    Proceedings brought to acquire title to certain lands required for the opening of a street! The opinion states the material facts.
    William B. Ellison, Corporation Counsel (James Regan FitzGerald, of counsel) ; Truman H. Baldwin, for certain property owners, for motion.
    McCarty & Baldwin, for Samuel H. Valentine et al., executors, in opposition.
   Giegerich, J.

This proceeding was brought to acquire property for the purpose of opening a street to be known as “Mount Vernon avenue,” from Jerome avenue to the north-em boundary of the city of Hew York. Objection was made on behalf of the Woodlawn Cemetery to the acquisition for street purposes of that part of the cemetery lying between Jerome avenue and Two Hundred and Thirty-third street, which was included in the new street as originally projected. This objection was sustained by the courts after considerable litigation, and the result was that the city, owing to its inability to condemn the property of the Woodlawn Cemetery embraced within the proposed street, had no use for the strip of property originally proposed to be acquired from what is known as the “Valentine estate,” which strip, taken in connection with the strip proposed to be acquired from the Woodlawn Cemetery, constituted the contemplated street between Jerome avenue and Two Hundred and Thirty-third street. The strip so originally intended to be acquired from the Valentine estate is of an irregular, elongated and tapering form and is properly described by the attorney for the city as a cul de sac, now that the city has been defeated in its efforts to obtain the needed portion of the cemetery property, and would be of very little value to the city. When the matter took this form the board of estimate and apportionment, by resolution, required the corporation counsel to discontinue the proceeding so far as it affected the portion of the proposed avenue lying between the said Jerome avenue and Two Hundred and Thirty-third street. The commissioners of estimate and assessment have now made their report and this motion, made by the city, is to confirm the report, so far as it relates to awards, and to return it to the commissioners for further action, so far as it relates to assessments. On behalf of the Valentine estate objection is made that the city had no right or authority to discontinue the proceeding as to a part of the property, and the court is asked to refer the report back to the commissioners, with directions to make a further final report, without regard to the resolution of the board of estimate and apportionment directing the discontinuance of the proceeding as to a portion of the property originally embraced therein. Both sides treat the case as properly presenting the question of the power of the city to discontinue such a proceeding as to a portion of the property affected. Section 1000 of the Greater Mew York charter (Laws of 1901, chap. 466) expressly clothes the hoard of estimate and apportionment with authority to discontinue such proceedings at any time before title is acquired by the city if, in the opinion of the board, the public interest requires such discontinuance. In the present case there can be no question that the public interest did require the- discontinuance of the proceeding to the extent indicated in the resolution of the board, and the only question is whether the proceeding, if any discontinuance is had, must be discontinued in ioto or whether it may be discontinued as to a portion of the property affected. Mo authority is cited directly on the point, nor is the statute explicit; but, in view of the reasons underlying the rule permitting a discontinuance of such proceedings in the discretion of the proper city authorities, which rule is not one of recent date nor one based solely upon the authority of the present statute (See Matter of Comrs. of Washington Park, 56 N. Y. 144, and cases cited), I am of the opinion that it ought to be held that such authority was intended to be conferred. Otherwise the city would Tie put to the hardship of either discontinuing this entire proceeding, with the consequent delay and the loss of the labor and expense of appraising the property embraced within the portion of the street which it has power to take and is intending to take, and instituting an entirely new proceeding for the purpose of doing precisely what has been done in the present proceeding, or, in the alternative, of maintaining the present proceeding in its entirety and acquiring and paying for land which, under the circumstances, is manifestly of much greater value to its owners than it would he to the city and which would be acquired by the city at a heavy loss. Motion granted, but without costs.

Motion granted, without costs.  