
    In the 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 Robbins Avenue (Although not yet Named by Proper Authority) from the Southern Boulevard to St. Mary’s Park, etc., in the Twenty-third Ward of the City of New York. The City of New York, Appellant, Respondent; Alfred Seton and Others, as Trustees, etc., of Samuel E. Lyon, Deceased, and Others, Property Owners, Respondents, Appellants.
    
      Deed bounding the land conveyed by the streets on which it abuts — when it does not convey the fee of the streets — effect of a subsequent mitten statement fled by the grantor as to his intention not “ to restrict the free and uninterrupted use of said streets” — it operates by estoppel—what streets are affected thereby — statutory limitation that in New Yoi'h city an assessment shall not exceed one-half the value of the lots assessed—a report of commissioners in street opening proceedings which does not show that they have determined the value of the lots is illegal,
    
    October 15, 1880, one Lyon, who was the owner of a tract of land in the city of New York, filed a map thereof, on which the land was divided into four city blocks, subdivided into building lots abutting on streets designated on the map. The map contained the following statement: “The streets and avenues designated on this map are shown thereon for convenience in description only and not with intent to dedicate the same to public use.”
    Three days prior to the filing of the map, Lyon conveyed to one Heintze the land included within the four blocks bounding the same by the streets mentioned on the map. The deed referred to the map as one “to be filed,” and contained the following clause: “ Streets and avenues shown on said map and mentioned herein being shown thereon and referred to herein for convenience in description only and not with intent to convey the same or dedicate the same to public use.”
    Thereafter Lyon filed a statement to the effect that the language used in the deed to Heintze with reference to "the streets and avenues referred to on the map, “ was not intended to restrict the free and uninterrupted use of said streets and avenues by the said Heintze or his grantees, heirs, executors, administrators or assigns for the purpose of access and egress to and from any of said building lots designated on said map or mentioned in said deed; but the said John George Heintze, his grantees, heirs, executors, administrators or assigns were intended by me to have and enjoy free and uninterrupted access over and upon said streets and avenues.”
    
      Subsequently Heintze reconveved to Lyon all the land with the exception of a few lots, some of which were retained by Heintze and some of which he bad sold to third parties. This deed contained the following provision: “The streets and avenues above mentioned are all referred to herein and shown on said map for convenience in description only and not with the intent to dedicate, the same to public use.”
    
      Held, that by the deed to Heintze, Lyon did not convey the land within the streets, or grant any easements therein;
    That the declaration filed by him did not operate to give the grantees of Heintze-. easements of light, air and access over all of the streets designated on the map, but simply operated, by way of estoppel, to confer on such grantees a right of way by necessity over so much of the street on which their premises abutted' as was necessary to enable them to pass to and from their respective lots to a street which had been opened;
    That the fee of the remaining portion of the street upon which such lots abutted remained in Lyon free from any easement on the part of Heintze’s grantees.
    Under section 980 of the Greater New York charter, which provides that the commissioners appointed in a street opening proceeding shall in no case assess any lot, whether improved or unimproved, more than one-half the value-thereof as “valued by them,” a report filed by the commissioners which does not show that they have ever determined the value of the lots upon which they have imposed assessments or that the assessments are not in excess of the statutory limit, is illegal and should be sent back to the commissioners for further consideration.
    Van Brunt, P. J., and Laughlin, J., dissented.
    Cross-appeals by The City of New York and by Alfred Seton and others, as trustees, etc., of Samuel E. Lyon, deceased, and others, property owners, 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 20th day of January, 1902, confirming the report of the commissioners- of estimate and apportionment appointed in the above-entitled proceeding.
    
      John P. Dunn, for the City of New York.
    
      Barclay E. V. McCarty, for the property owners.
   McLaughlin, J.:

On the 24th of November, 1894, proceedings were instituted in the manner provided by law for the purpose of opening Robbins, avenue in the city of New York, and on the 30th of June, 1896, by resolution of the board of street opening and improvement, the title to-land necessary for the opening of such avenue from the Boulevard. to St. Mary’s Park was acquired. Commissioners of estimate and assessment were appointed and after various hearings had and proceedings taken a final report was made which, on the 20th of January, 1902, was confirmed by an order of this court, from which the city and certain landowners have appealed.

The city contends that the commissioners erred in awarding damages to owners of three parcels of land taken, designated in the record as Nos. 6, 7 and 8, in that such awards were based upon the theory that the owners possessed an unincumbered fee therein, and the landowners contend that the order is erroneous, inasmuch as the report of the commissioners imposes upon their land an assessment in excess of that allowed by law.

The contention of the city will be first considered. Prior to October 15, 1880, one Lyon acquired title to a tract of land which included the parcels now in question, and on that day he filed a map in the register’s office of the city of New York of a portion thereof, including these parcels, which was laid out into city lots with certain streets designated thereon, and among them was one called Robbins avenue, which corresponds with tlié Robbins avenue opened by this proceeding. This map, however, contained the following statement written upon its face: “ The streets and avenues designated on this map are shown thereon for convenience in description only and not with intent to dedicate the same to public use. Dated N. Y. Aug. 27th, 1880. Samuel E. Lyon.” The tract shown irpon this map was laid out in four city blocks, subdivided into lots, bounded by streets and intersected by two streets, one called Robbins avenue and the other Mary street. Three days before the map was filed Lyon executed to one Heintze a deed of conveyance of the land included within the four blocks, bounding the same by the streets designated upon the map which was referred to as one “ to be filed.” In the deed was inserted the following clause: “ Streets and avenues shown on said map and mentioned herein being shown thereon and referred to herein for convenience in description only, and not with intent to convey the same or dedicate the same to public use.” This clause, taken in connection with the statement upon the map and the boundaries of the land conveyed, clearly and conclusively establishes that Lyon did not intend to part with the title to the land included within the streets designated upon the map, ndr did he in fact convey such land or grant any easements therein. (Matter of Brook Avenue, 40 App. Div. 519.) It appears, however, that on the 4th of February, 1882, there was filed in the office of the register a statement signed by Lyon to the effect that the language used in the deed to Heintze with reference to the streets and avenues referred to therein “ was not intended to restrict the free and uninterrupted use of said streets and avenues by the said Heintze or his grantees, heirs,.executors, administrators or assigns for the purpose of access and egress to and from any of said building lots designated on said map or mentioned in said deed; but the said John George Heintze, his grantees, heirs, executors, administrators or assigns were intended by me to have and enjoy free and uninterrupted access over and upon said streets and avenues.” It is contended by the city that this declaration, made more than fifteen months after the deed was delivered, operated to give the grantees of Heintze easements of light, air and access over all of the streets designated on the map; in other words, that it made all of the streets subject to private easements therein. If the contention be true, then it must be by way of estoppel on the part of Lyon, because the declarations of a grantor made after the transfer of both title and possession cannot be received for the purpose of adding to or taking from the subject-matter of the grant. (Lent v. Shear, 160 N. Y. 462.) Not only this, but in the map filed the statement is expressly made that the streets and avenues designated thereon are for “ convenience in description only and not with intent to dedicate the same to public use,” and in the deed the land conveyed is not only limited to and bounded by the streets shown upon the map, but the conveyance of such land is made expressly upon the condition that the streets and avenues referred to are for convenience in description only “ and not with intent to convey the same.” After the conveyance to Heintze the title to the land in the streets shown upon the map remained in Lyon. It had not been affected in any way, because he had expressly reserved it. Of course he could thereafter have conveyed the same to Heintze had he seen fit to do so, but this he did not undertake to do and the declaration which lie filed falls far short of what the statute (1 R. S. 738, § 137) required in an instrument necessary to transfer the title to land. This declaration, in so far as it was acted upon by purchasers of lots or persons acquiring an interest therein, inured to their benefit by estopping Lyon from disputing the right of access to and from lots purchased, over so much of the land reserved as might be necessary for that purpose; in other words, he could not thereafter deny, notwithstanding the reservation in the deed, that the purchasers of lots had an easement by implication. (Hier v. N. Y., W. S. & B. R. Co., 40 Hun, 314; affd., 109 N. Y. 659.) The grant of an easement by implication does not exist for convenience, but only where there is a necessity for it. (Wheeler v. Clark, 58 N. Y. 267; Ogden v. Jennings, 62 id. 526; Kings County Fire Ins. Co. v. Stevens, 101 id. 411.) That Lyon intended nothing more than an easement by implication should be acquired under his declaratory statement is evidenced by the statement itself, in which nothing is in fact granted, as well as by the subsequent use and occupation of the land reserved. The title to the entire tract, it must be borne in mind, was acquired by Lyon in 1867, and from that time until he conveyed to Heintze, the entire parcel had been surrounded by a fence. After the conveyance to Heintze, the fence on that portion of it which abutted on Division avenue, a traveled thoroughfare, was removed at the point where it crossed the strip designated as Robbins avenue, so that,about 193 feet of that avenue was left uninclosed. The part of Robbins avenue thus left open is designated in this proceeding as parcel No. 6A, and the award made for damages sustained by taking it was upon the theory that there were private easements therein, and that such award is correct is not questioned by any of the parties on this appeal. When the fence was removed from the southwesterly end of parcel No. 6A one was erected at the northeasterly end of the fence which extended entirely across Robbins avenue so that the portion of the avenue lying northeasterly of the fence could not be used as a thoroughfare and was not accessible either to the public or to purchasers of lots abutting on No. 6A, and thereafter both it and the balance, of the whole tract was inclosed by a fence. After the change in the location of the fence Heintze conveyed to various persons lots abutting upon parcel No. 6A, and these persons used, as they undoubtedly had a right to, so much of the part of Robbins avenue as was necessary in passing to and from their respective lots to Division street. But no part of the remainder of Robbins avenue was adjacent to any of the lots sold by Heintze, nor was passage over the same in anyway necessary to the use and enjoyment of such lots. In 1883 Heintze reconveyed to Lyon all the land Lyon had conveyed to him with the exception of a few lots retained and others that had been sold, but none of which abutted on the portion of Robbins avenue designated in this proceeding as Nos. 6, 7 and 8 and for which the awards complained of were made. In this deed there was inserted : “ The streets and avenues above mentioned are all referred to herein and shown on said map for convenience in description only and not with the intent to dedicate the same to public use.” This fact, taken in connection with the facts hereinbefore referred to, indicates as it seems to me that Lyon never intended to create any easement over Robbins avenue or any other streets designated upon the map filed by him, except such as might be absolutely necessary in getting to or from lots which might be sold. As already indicated, a right of way was not necessary to reach any lots sold or reserved by Heintze over the tracts 6, 7 and 8, and, therefore, no easements were acquired in these parcels.

If I am correct in this conclusion, then it necessarily follows that the awards made by the commissioners were correct, and the order confirming their report in this respect should be affirmed.

This brings us to the appeal taken by certain property owners from so much of the order as confirms the report of the commissioners relating to assessments made upon their lots for opening the avenue. Section 980 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466) provides, among other things, that the commissioners shall in no case assess any lot, whether improved or unimproved, more than one-half of the value thereof as “ valued by them,” and it has been held by this court (Matter of East 175th Street, 49 App. Div. 114; Matter of Whitlock Avenue, 51 id. 436; app. dis., 163 N. Y. 606) that this section of the charter applies to assessments made after the 1st of January, 1898, the date when the charter took effect. Here the preliminary report of the commissioners was not filed until after the charter went into effect, and, therefore, the assessments are to be governed by the section referred to. The commissioners could not impose an assessment upon any of the lots until they had fixed and determined the value of such lots, and then such assessment could not exceed one-half of their valuation. In order to justify an assess-meat under this section, it is necessary that the report of the commissioners should show that the assessment is not more than one-half the value of the lot, and this cannot be done unless the report shows that the commissioners have determined the value of the lot assessed. Here there is nothing to show that the commissioners have ever determined the value of any lot upon which assessments have been imposed, nor is there anything to show that the assessment is not in excess of what the statute permits. Therefore, upon its face it is illegal and must be sent back to the commissioners for further consideration. (Matter of Second Avenue M. E. Church, 66 N. Y. 395; Matter of Cram, 69 id. 452.)

It follows that the order appealed from, in so far as it confirms the report of the commissioners awarding damages to the owners of Damage Map Nos. 6, 7 and 8, must be affirmed, and in so far as it confirms the report of the commissioners as to assessments made upon the lots of owners who have appealed, it must be reversed, with costs to the appealing property owners, and sent back to the commissioners for a further consideration.

O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., dissented ; Laughlin, J., dissented in part.

Laughlin, J.:

I dissent from the conclusion reached by Mr. Justice McLaughlin in his opinion in this case, in so far as it affirms the order appealed from, and I concur with that part of his opinion which directs a reversal. I am of the opinion that the order appealed from should be reversed m toto.

Order affirmed to the extent stated in opinion ; in other respects reversed, with costs to the appealing property owners, and report sent back to commissioners for further consideration.  