
    In the Matter of the Application of The City of New York, Relative to Acquiring Title, etc., for the Opening and Extending of a Tunnel Street, Extending from Broadway, near Fairview Avenue, to the Subway Station at West One Hundred and Ninety-first Street and St. Nicholas Avenue, etc. Monroe L. Simon and Others, Appellants; The City of New York, Respondent.
    First Department,
    December 31, 1913.
    Real property — when “incumbered” so as to prevent loans thereon— easement —municipal corporation—eminent domain — construction . of “tunnel street ” — damages.
    If an easement does not affect the title of the owner or reduce the value of his remaining interest in the land, it cannot be said to be “ incumbered ” within the meaning of the statute forbidding loans on incumbered real estate.
    Hence, an easement to construct a “tunnel street” 150 feet below the surface does not render the property “incumbered” so as to entitle the owner to additional damages.
    Appeal by Monroe L. Simon and others 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 November, 1912, overruling objections to the confirmation of the report of commissioners of estimate herein and confirming the said report.
    
      Truman H. & George E. Baldwin, for the appellants.
    
      Joel J. Squier, for the respondent.
   Scott, J.:

The property acquired in this proceeding is an easement to construct what is known asa “ tunnel street ” extending from Broadway to St. Nicholas avenue at or near One Hundred and Ninetieth street in the city of New York. This “ tunnel street ” runs under a high hill composed of rock and at a great depth, so that under appellants’ property the tunnel will be approximately 150 feet below the surface. The appellants concede upon the brief, as is quite obvious from the circumstances, that the physical injury to their property will be so slight as to be practically negligible because of the nature of the ground through which the “ tunnel street ” runs, and of its great depth below the surface. If the physical injury to the property is alone to be considered, it is not claimed that the award objected to is insufficient to cover the damage resulting from any instability of structures to he erected on the surface. In other words after the “ tunnel street ” shall have been constructed the property will be precisely as available for improvement as it is now. The appellants claim, however, that the acquisition of the easement will result in a consequential ' damage to the property because, as it is claimed, the existence of the “ tunnel street” will injuriously interfere with the facility with which the property can be sold and mortgaged. It is asserted, no doubt with truth, that unmortgageable property is unsalable, or not readily salable because in a city like New York the usual and almost universal means of raising money for the improvement of real estate is by mortgaging the property to be improved.

The argument to show that the existence of the easement for the maintenance of a “tunnel street” will impair the mortgageahihty of the appellants’ property runs thus: (1) The statutes of this State forbid insurance companies; trust companies, savings banks, executors, administrators and trustees to loan on incumbered real estate. (2) An easement is an incumbrance upon the real estate which it affects. Ergo, insurance companies, trust companies, savings banks and persons having trust funds to invest could not loan on appellants’ property,, if subject to the easement acquired in this proceeding.

The fallacy in this argument lies in the fact that it fails to take account of the nature of the incumbrance contemplated by the Legislature when it prohibited certain corporations and individuals from investing except upon unincumbered real estate. It is certainly not every easement affecting real estate which is to be considered an incumbrance within the prohibition of the statutes above referred to. If it were it would be impossible for the corporations and individuals mentioned to loan upon any building resting upon a party wall. The statutes referred to were passed to prevent the loss of the funds of the specified corporations and individuals in consequence of loans upon unsafe and precarious security, and the incum0brances referred to therein are such as might in some contingency subject the property to a claim or lien which would be superior to the lien of the loaner, or might otherwise endanger the security. If the incumbrance is not in the nature of a condition from which a forfeiture may result, or if the easement is not one which affects the title of the owner or reduces the value of his remaining interest in the land, the property cannot be said to be so “incumbered” as to forbid the corporation and persons enumerated to loan upon it. This was the view taken by the Attorney-General of this State in a communication addressed to the Superintendent of the Banking Department on January 29, 1891. (See Report of the Attorney-General, 1891, p. 51.)

The effect of the improvement contemplated in this proceeding is to take a tunnel through appellants’ property 150 feet below the surface. It will not restrict the superficial area of the property or in any way interfere with its improvement or development. Save for the bore taken for the tunnel the appellants will own their property as absolutely as they now own it, and the easement acquired by the city cannot under any conceivable circumstances ripen, as to the property remaining to the owners, into a lien or claim superior to any mortgage that may be placed upon the property.

The appellants’ claim for damage exceeding the award now made to them impresses us as unsubstantial and fanciful, with no sound basis to rest upon.

The order appealed from must be affirmed, with costs.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Order affirmed, with costs and disbursements.  