
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, etc., to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Walton Avenue from East One Hundred and Sixty-seventh Street to Tremont Avenue, etc., in the Twenty-third and Twenty-fourth Wards of the City of New York. In the Matter of Petitions of Louis Brass and Others, Relative to Damage Caused by the Closing and Discontinuance of Fourth Avenue, Fifth Avenue, Sixth Avenue, Seventh Avenue, Eighth Avenue and Walnut Street, as Laid Out on Map of Village of Mount Eden, Filed February 14, 1854, and of Punett Street and of Sheridan Avenue or Walton Avenue, Between Marcy Place and Elliott Place. The City of New York, Appellant; Henry D. Clark, Appellant, Respondent; Elizabeth A. Higgins and Others, Respondents.
    First Department,
    April 23, 1909.
    Municipal corporations—street opening, city of Mew York — chapter 1006 of the Laws of 1895 construed — damages of abutting owners — dedication to and acceptance of street by public — power of Legislature to close street prior to award —claimant must show title — rights of owners whose access is cut off— award of damages where claimant owns fee—right to use old streets until new streets opened.
    By chapter 1006 of the Laws of 1895, governing the closing of streets and thoroughfares in cities of more than 1,250,000 inhabitants, the Legislature intended to provide not only for the destruction of public easements, but of private easements in the discontinued streets.
    
      Under section 2 of chapter 1006 of the Laws of 1895, streets shown on the map filed are regarded as being laid out by the local authorities filing the map regardless of whether at that time they were public streets and are merely continued on the new plan or whether they were new streets which had not been dedicated to or acquired by the city for public purposes. Hence, although Jerome avenue had already been opened before the filing of such map, it was continued as a public street thereby and former existing intersecting streets not continued on the new plan become closed upon the filing thereof. The owners are entitled to damages and are not required to wait until the new block containing the closed streets is surrounded on the other three sides by streets yet to he acquired by the city and physically opened for public purposes.
    The Legislature may close streets before new streets are opened giving access to property abutting on the discontinued streets and leave the property owner to his remedy for compensation as prescribed in chapter 1006 of the Laws of 1895.
    Evidence examined, and held, that portions of Seventh and Eighth avenues and Walnut street, formerly within the village of lit. Eden in the county of Westchester were dedicated to the public by former owners and were subsequently accepted as public highways by the city of New York prior to the 2d day of November, 1895, when a map laying out streets in that section was filed under chapter 1006 of the Laws of 1895.
    The dedication of a street by the owner and an acceptance hv the municipal authorities does not vest the fee in the city, and hence the fact that the city is subsequently given authority to acquire the fee shown on prior maps does not militate against the dedication and acceptance of easements for public purposes.
    Although it appears that portions of streets closed under chapter 1006 of the Laws of 1895 had already vested in the city for public purposes in another proceeding, and that awards had then been made to property owners injured, the commissioners in assessing damages on closing said streets should assume that the former awards were made upon a proper basis and are not at liberty to speculate as to what, if any, additional compensation the owners received in the other proceedings over and above that to which they were legally entitled.
    By virtue of sections 4 and 14 of chapter 1006 of the Laws of 1895 the right of landowners to damages accrues the moment streets become legally closed under said act.
    Ordinarily where lands or easements are acquired for public purposes the private title or easements are not extinguished until just compensation has been made; but where the right of eminent domain is exercised by the State or a political division thereof, the Legislature may provide for the extinguishment of title and easements at a fixed time in advance of compensation if the owner he given an adequate remedy to recover his damages.
    Where streets are closed under a statute by which the title vests in a municipality prior to an award of damages, the right of claimants must be determined as of the time when the street became legally closed.
    In such case the damages consist in the depreciation in the value of lands by the closing of the street and the termination of the claimant’s right to have them maintained as public streets, and it is immaterial that such owners did not inclose the discontinued streets, as authorized by the statute, but continued to use it, as such user was merely by sufferance and not by right.
    One claiming damages for the closing of a street is under the burden of showing both his title and his damage. If he fail to do so an award will be vacated.
    Where a city raises an objection that a claimant is not legally entitled to receive any award and that the evidence is insufficient to justify an award, and that the same was made on an erroneous theory, there is no waiver of the rule that the claimant must prove both his title and his damage.
    Where streets are closed under chapter 1006 of the Laws of 1895, commissioners may make an award in excess of the amount stated in the claim filed by the owner. This, because the object of filing a claim is not to procure a settlement thereof, but to institute proceedings for the ascertainment of the damages sustained, and it is not incumbent upon the claimant to state the amount of his damage with accuracy.
    As said act of 1895 provides that discontinued streets may be inclosed by the owners of the fee, there was an intention to terminate all public and private easements in the portion of the streets closed, not merely to terminate those easements as to property owners within the same block and leave them outstanding as to other owners. Hence, where, the outlet of a street which was formerly a eul de sao became legally closed, abutting owners whose outlet was thus cut off are entitled to compensation.
    The only jurisdiction to make an award on a street closing under chapter 1006 of the Laws of 1895 is by an order obtained pursuant to section 14 of that act.
    When there is no order on record authorizing the commissioners to ascertain the compensation of a certain claimant, they are not entitled to make him an award.
    Evidence examined, and held, that a certain street formerly dedicated to the public had not been accepted by the municipal authorities.
    
      It seems, that even if such street had become a public street, if the former owner retained title to the fee at the time it became closed in a proceeding under the act of 1895, his damages should be assessed upon the basis of the extinguishment of the public easement only, for owning the fee, the claimant retained the same right of ingress and egress and lost merely the benefit of having his property fronting upon a public street to be maintained ns such.
    In a street closing under chapter 1006 of the Laws of 1895, old streets do not. become closed until at least one street bounding the proposed block becomes physically opened for public use. Hence, although a new street bounding one side of the proposed block has been laid out but not physically'opened, claims for damages are premature, as the right to use the streets to be discontinued still exists.
    Ingraham, J., dissented, in part, with opinion.
    Appeal by The City of New York and by Henry D. Clark, a property owner, 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 14th day of June, 1906, confirming a special report of the commissioners of estimate and assessment embracing awards for damages caused by the discontinuance and closing of certain streets and avenues in the vicinity of Walton avenue, in the city of New York, and assessments assessing the amount of such awards, together with the costs and expenses of the special proceeding, upon the lands benefited by the closing and discontinuance of. the streets.
    
      Thomas C. Blake [ John P. Dunn with him on the brief], for the appellant City of New York.
    
      Joseph A. Flannery, for the appellant Henry D. Clark and for said Clark and certain others as respondents.
    
      Harold Swain, for the respondents Margaret E. Weber and others.
    
      James A. Deering, for the respondents James A. Woolf and others.
    
      Walter S. Newhouse, for the respondent August P. Windolph.
    
      Charles V. Gabriel, for the respondent Louis Brass.
   Laughlin, J.:

On the 18th day of March, 1897, an order was duly made and entered appointing commissioners of estimate and assessment in proceedings for the opening and laying out of Walton avenue from East One Hundred and Sixty-seventh street to Tremont avenue. Thereafter, from time to time, orders were made on the application of property owners or of persons claiming to be interested in premises alleged to have been damaged by the discontinuance of certain streets in the vicinity of Walton avenue, appointing the same commissioners as commissioners to ascertain and determine the compensation to be awarded to the respective petitioners and to report the same to the court, pursuant to the provisions of section 14 of chapter 1006 of the Laws of 1895. The commissioners heard their claims and filed a special report on the 5th day of Decernber, 1905. The city filed certain objections to the entire report awarding- damages and appellant Clark filed objections to one of the awards. The objections were overruled and the report was confirmed without modification. On the objections thus filed by the city questions are presented on this appeal with respect to whether rights to compensation-for closing the streets have accrued, with respect to whether the streéts were public streets and were open and in use as such, with respect to whether certain claimants were regularly before the commissioners and entitled to have their claims considered, and whether they were bound as to the amount of damages by the claims filed.

It is advisable to consider at the outset the statute under which Walton avenue was laid out and the streets are claimed to have been discontinued, and the proceedings for ascertaining the damages sustained by closing the streets have been instituted.

Section 9 of the final maps of the twenty-third and twenty-fourth wards of the city of Mew York was duly filed in the various offices required by law on the 2d day of Movember, 1895. This map was validated by chapter 712 of the Laws of 1896. (See Matter of Mayor, etc., of N. Y., 166 N. Y. 495, 503.) It had been prepared pursuant to the provisions of chapter 545 of the Laws of 1890, as amended. By this map part of Walton avenue, described in this proceeding, was laid out as a new proposed avenue. On the 12th day of June, 1895, prior to the filing of the map, chapter 1006 of the Laws of that year became of force. That act in form was general, and applied to the discontinuance and. closing of streets, avenues, roads, highways, alleys, lanes and thoroughfares in cities of more than 1,250,000 inhabitants, but inasmuch as the city of Mew York was the only city having the population specified, its immediate application was to the city of Mew York only. The 1st section of the act authorized the local authorities of the city, in the manner therein provided, to discontinue “such streets, avenues, roads, highways, alleys, lanes and thoroughfares therein as they may deem to be necessary in order to more effectually secure and preserve regularity and uniformity in the general and permanent plan of streets and avenues and public places therein, or where other public necessity, in the judgment of such local authorities, requires the discontinuance thereof in whole or in part. The local authorities referred to in this act are the department, commissioner, board or officer heretofore authorized or which may be hereafter authorized by law to lay out streets, avenues, public squares or places in that part or section of the said city in which such discontinuance has been or shall be proposed or determined.” The map was filed by the local authorities authorized to lay out streets, avenues, public squares and places in the section of the city to which it relates, and this is not questioned. Section 2 of the act of 1895 provides as follows:

“ § 2. The local authorities authorized by law to lay out, open, extend, alter or improve streets, avenues and roads in any such city or district thereof, and to make and file a map or plan showing the streets, avenues and roads so laid out, opened, altered, extended or improved, shall, upon any map or plan so made and filed by them, designate only the streets, avenues and roads which they may determine to so lay out, open, alter, extend or otherwise improve as the permanent streets, avenues and roads in and for such city, or for the particular district or section thereof shown upon such map or plan, omitting therefrom all such former streets, avenues, roads, highways, alleys, lanes and thoroughfares which they may determine to discontinue or close. They shall also upon said map designate the public parks, parkways, squares, places and other public ways which they may determine to lay out and establish. "Upon and after the filing of such map the streets, avenues and roads shown thereon shall be the only lawful streets, avenues and roads in that section of such city shown upon such map or plan, and all other former streets, avenues, roads, highways, alleys, lanes and thoroughfares theretofore laid out, dedicated or established, not shown thereon, and which are not then actually open or in public use, shall from and after the filing of such map or plan cease to be or remain for any purpose whatever a street, avenue, highway, road, alley, lane or thoroughfare, and the owner or owners of the fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used. But in all cases where any such street, avenue, road, highway, lane, alley or thoroughfare is at the time of the filing of such permanent map or plan actually open and in public use, such parts or portions thereof as are included within the boundaries of any square or plot of ground made by the intersection of any streets, avenues or roads laid out by the local authorities upon the permanent map or plan of said city or district thereof in which such square or plot is situated, shall ever after any one of the streets, menúes or roads bounding such square or plot shall be opened, cease tó be or remain for any purpose whatever a street, avenue, road, highway, lane, alley or thoroughfare, and the owner in fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used. The provisions of this section shall apply to all streets, avenues, roads, highways, alleys, lanes and thoroughfares or parts or portions thereof which have not been retained or shown upon any map or plan heretofore made and filed by or on behalf of the local authorities of such city as part of the permanent system of public streets, avenues, roads, public squares and places in and for that part of such city included within the district laid out upon such map or plan, and which have not been thereafter re-established by law or relaid out or otherwise thereafter lawfully laid out and established. But nothing in this act contained shall be construed as authorizing the local authorities to alter or change the general or permanent map or plan of said city or any portion thereof by laying out new streets, avenues, public squares or places, or altering, amending, extending or otherwise improving the streets, avenues, public squares and places heretofore laid out upon the permanent or general plan of such city otherwise than in the manner now provided by existing laws.”

It must be now regarded as the settled construction of this statute that the Legislature intended to provide, not only for the destruction of public easements, but of private easements in the discontinued streets as well. (Matter of Mayor, Vanderbilt Ave., 95 App. Div. 533; S. C., 119 id. 882; affd., 189 N. Y. 551.) Said section 9 of the final maps of the twenty-third and twenty-fourth wards continued Jeróme avenue as it then existed and laid out Walton avenue, running parallel therewith about 450 feet southerly therefrom, and laid out Townsend avenue between them and parallel with them from East One Hundred and Seventieth street continuing beyond East One Hundred and Seventy-fourth street. It also laid out, some distance to the south of Walton avenue, a grand boulevard and concourse, running for the most part in the same general direction. It laid out certain other streets at right angles to Jerome and Walton avenues, extending between Jerome avenue and Grand boulevard and concourse. The streets in this section of the city, with the exception of Jerome avenue, prior to the filing of said map, ran in the main at angles of about forty-five degrees to Jerome avenue and to the streets continued or laid out by this map. In other words, the effect of the map was to change the course of streets in that section about forty-five degrees by closing some and laying out others. This map leaves or rather creates one new block bounded by Jerome avenue on the northwest, by Belmont street on the northeast, by Townsend avenue on the southeast and by East One Hundred and Seventy-second street on the southwest. It will, I think, tend to facilitate a clear understanding of the questions presented to consider, first, the awards for lands within this new block. Parts of Seventh and Eighth avenues and of Walnut street, as they formerly existed, were within the boundary lines of this block, and as they were not continued on said map it was intended thereby to discontinue them. The owners of property in this block contended and gave evidence tending to show that these avenues and this street were at that time opened and in use as public streets. The city controverts that proposition and the questions thus arising will be considered presently; but for the purpose of presenting and deciding another proposition it will be assumed for the present that they were at the time of the filing of the map public streets, opened and in use as such. Jerome avenue had been duly laid out, acquired and opened and was in use as a public street at the time this map was filed. The commissioners proceeded upon the theory that since it bounded this new block on one side the effect of filing the map was by virtue of section 2 of the act of 1895, herein quoted, to permanently close the parts of these avenues and of Walnut street within that block, and they have estimated the damages of the property owners as of the date of filing the map. The city contends that this was error and that assuming these avenues and this street to have been open and existing streets, they were not closed and will not be closed until one of the other three streets bounding this new block, which are laid out on the map and which were not streets at the time of filing it, shall have been acquired by the city and actually physically opened up as public streets, and that until that time no damages will accrue to the property owners. I am of opinion that in this regard the commissioners proceeded upon the right theory. There are some expressions in the opinion of the Court of Appeals in Matter of Mayor, etc., of N. Y. (166 N. Y. 495) which are drawn to our attention as tending to hold the contrary. The court, however, was not considering this question and evidently did not have the point in mind. It will be observed that section 2 of the act in question regards the streets shown upon the map filed as laid out Try the local authorities who filed the map regardless of the question as to whether such streets were then public streets and merely continued on the map, or whether they were new streets which had been neither dedicated as streets nor acquired for public street purposes by the city. The statute appears to have been framed upon the theory that although some of the streets shown upon the map may have existed as public streets theretofore, the act of the local authorities in thus continuing them upon the map brought them within the permanent plan of public streets and more effectually insured their continuance as such. In short, it placed them in the class of per-. manent streets, and that act was deemed by the Legislature to constitute laying the streets out. It is quite clear, even upon the theory of the learned counsel for the city, that if Jerome avenue, at the time the map was filed, had not been a public street, actually opened and used as such, but the moment after the map was filed became a public street and was opened and used as such, the parts of streets and avenues within the block bounding thereon would thereupon become discontinued and the right of the property owners to damages would at once accrue. It is not questioned that it was competent for the Legislature to close any of these streets before new streets were opened, giving access to property abutting on the discontinued streets, leaving the property owner to his remedy for compensation as prescribed in the act; and that proposition would seem to be affirmed by the decision of the Court of Appeals sustaining the constitutionality of the act. The contention of the learned counsel for the city in this regard is that the Legislature did not intend to do so. It is manifest that the Legislature attempted to preserve a means of access to property owners in part by providing that an existing street which was opened and in use at the time the map was filed should not be deemed closed until one of the streets bounding the block should be opened, but it is evident that this would not afford access in all cases to lands fronting upon the discontinued streets, nor would the opening of all the new streets in all instances afford access to lands which previously had a frontage on a discontinued street. It is neither claimed that a street could not be discontinued until all of the streets bounding the block within which it was to be discontinued had been opened, nor that it could not be deemed discontinued as to any particular parcel of land until that parcel had an outlet upon a new street which had been opened for use. The constitutionality of the statute is not questioned, and, therefore,, will not be considered. The parties merely differ with respect to the construction of it. I fail to see any logic in the construction for which the city contends. If the parts of existing streets within a block bounded entirely by new streets became legally discontinued as soon as the city acquires and opens any one of the streets bounding the block or part of it, then the streets within this block should be deemed discontinued forthwith upon the filing of the map showing the continuance of Jerome avenue on the permanent plan, bounding the block on one side, for that avenue was then a public street and opened and in use as such. The learned counsel for the city bases his argument principally upon the fact that in said section 2, herein quoted, the future tense is used in the clause “ shall ever after any one of the streets, avenues or roads bounding such square or plot shall be opened, cease to be or remain for any purpose whatever a street.” He contends that if the Legislature intended that the existence of a public street then in use bounding the block should have the effect of closing the streets, it would have expressly so declared, and that by declaring that when one of the streets bounding the block “ shall be opened,” it must have had reference to streets not already opened. That, I think, would be a technical construction and not in accordance with the spirit and intent of the act.

The learned counsel for the city further contends, as already observed, that Seventh and Eighth avenues and Walnut street were not public streets. It is not claimed that the city ever acquired title to the streets. The theory of the respondents is that they became public streets by dedication and acceptance. These lands were formerly within the village of Mt. Eden in the county of Westchester. On the 21st day of September, 1853, a map was filed in the office of the clerk of the county of Westchester, purporting to be a “Map of the Village of Mount Eden, near Upper Morrisania depot, in the town of West Farms, in the County of Westchester, and State of Mew York, 1853. The property of Mrs. Margaret Woolf and Sons; ” showing that the survey thereof had been made by B. Henwood. This map showed these avenues and this street. Thereafter and on the 13th day of December, 1859, another map of the village of Mt. Eden was filed in the same office, showing, so far as material to the questions presented, the same property and the same streets and avenues, and indicating that the property was then owned by Thomas Woolf and brothers. These maps showed the property subdivided into village lots fronting on the various streets and avenues shown thereon. The owners thereafter sold and conveyed these lots to the present claimants, or to their predecessors in title, describing the premises by subdivision lot numbers, and expressly bounding the same on the streets and avenues. The village of Mt. Eden became part of themity of Mew York in or prior to 1874. (See Laws of 1874, chap. 329.) Pursuant to the provisions of chapter 604 of the Laws of that year, and of chapter 436 of the Laws of 1876, a map was made and filed in the department of public parks on the 21st day of February, 1879, showing, among others, these avenues and this street as then existing and continuing the existence thereof, the avenues, however, bearing new names, with the old avenue numbers shown in black ink but crossed out. The map bears the following indorsement:

“ Map or plan with field notes and explanatory remarks, showing the location, width, windings, courses and classification of streets, roads and avenues and public parks or places within that part of the Twenty-fourth and adjoining part of the Twenty-third Ward of the City of Mew York, bounded on the west by Jerome or Central Avenue, on the north by Woodlawn Cemetery and north side of Pelham Avenue, on the east by the Mew York and Harlem Bail-road, Hoffman Street, Fordham and Third Avenues, and on the south by 161st Street in Morrisania, designated The Central District, as laid out and classified and discontinued and closed by the Commissioners of the Department of Public Parks of the City of New York, in pursuance of the provisions of Chapter 604 of the Laws of 1874 and Chapter 436 of the Laws of 1876.

“Dated New York, April Vlth, 1878.
“ (Signed) E. B. Y AN WINKLE,
Topographical Engineer.
“(Signed) Julius Munckwitz,
Superintending Architects
Extract from field notes and explanatory remarks:
“ The Streets, Eoads and Avenues laid out by the Commissioners of the Department of Public Parks, * * * are indicated by red color, the sidelines thereof by full red lines, and the widths of the same by red figures.
“ The Eoads and portions of Eoads which are discontinued and closed by said Commissioners are indicated by india ink shading.
“The Streets which are designated on this map * * * as streets of the first, second and third class are indicated by the Eoman Numerals, I, II, III respectively.
“ Existing streets, roads and avenues and the names by which they have heretofore been known are indicated by black lines and letters.
“ Filed in the Department of Public Parks, February 21st, 1879. Filed in the office of Eegister of the City of New York, February 28th, 1879.
“ D. POETEE LOED, Acting Secretary, D. P. PS

Said chapter 604 of the Laws of 1874 authorized the commissioners of the department of public parks to lay out, survey and monument streets, roads and avenues in that part of the city embracing this territory, and section 3 thereof provides as follows:

“ The maps, plans and profiles of the said commissioners of the department of public parks, made and certified to as hereinbefore provided, shall be final and conclusive as to the location, width and grades of the streets, avenues and roads, public squares and places exhibited on such maps, plans and profiles, as well in respect to the mayor, aldermen and commonalty of the city of New York, as in respect to the owners and occupants of lands, tenements and hereditaments within the boundaries aforesaid, or affected by said streets, avenues, roads, public squares and places, and in respect to all other persons whomsoever.”

The validity of this provision as a complete and final acceptance of a street theretofore dedicated and not accepted has been sustained by the courts. (Matter of Department of Public Parks, 53 Hun, 556; Matter of City of New York, Jerome Ave., No. 1, 120 App. Div. 297; Matter of Mayor, 24 id. 9.) Said section 9 of the final maps of streets in the twenty-third and twenty-fourth wards, filed on the 2d day of November, 1895, also shows these avenues and this street, but indicates that they have been closed and discontinued by that map. This evidence clearly indicates a recognition, by the city authorities of these avenues and this street and an acceptance of any dedication thereof, provided there was a sufficient dedication to authorize its acceptance. It was held in Matter of Department of Public Paries {supra) that where the park commissioners in 1877 filed a map adopting the lines of a certain street theretofore laid out on a map made and filed by a private owner of the property, their act constituted an acceptance of the dedication thus attempted to be made, and that even the prior occupation of a portion of the street by a grantee of the owner who had made the dedication was ineffectual to revoke the dedication before such acceptance because the revocation could only be made by the grantor. Of course a dedication by the owner and an acceptance by the city authorities did not vest the fee in the city, and the fact that authority was conferred to acquire the fee to streets shown on the map of the department of public parks in 1879 does not militate against the dedication and acceptance of the easements for public street purposes. The city offered no evidence on the question of user of those avenues or of this street. The property owners gave evidence tending to show that the avenues and street in question, and in fact all of the avenues and streets on the maps of the village of Mt. Eden, were open and in use by the public for a long period of years prior to 1893. One of the city’s experts testified that he had been familiar with this section for upwards of fifty years, and after testifying specifically that Seventh avenue had been opened and used by the public for over thirty-five years prior to 1902 and had been improved by the town authorities of West Farms, said that his testimony with respect to that avenue would apply to all of the streets laid down on said maps of the village of Mt. Eden. One of the property owners testified that Fifth, Sixth and Seventh avenues and Walnut street were in public use during twenty years prior to 1902 and that Walnut street was lighted by gas lamps. There was no evidence of any attempt on the part of the property owners to revoke the dedication attempted to be made by filing the maps. It has not been specifically shown that the beds of those streets and avenues have not been taxed, but since the maps became public records and conveyances were made of the lots as abutting and bounding thereon, that would be a fair inference. It is quite clear, I think, that these avenues and this street were duly dedicated and were duly accepted by the city authorities and that they were in use as public streets on the 2d day of November, 1895, when section 9 of the final maps of the twenty-third and twenty-fourth wards was filed.

The city further claims that the commissioners erred in their awards with respect to some of the parcels which are partly within this block and partly within the lines of one of the new streets bounding it as laid out on said section 9 of the final maps of the twenty-third and twenty-fourth wards. As already observed, neither Townsend avenue nor East One Hundred and Seventy-second street, which bound the block on two sides, was a public street when said maps were filed. The city showed that by proceedings duly had under the charter, the title to Townsend avenue vested in the city for public street purposes on the 6th day of September, 1897, and East One Hundred and Seventy-second street on the 4th day of December, 1897, and that proceedings were duly had to determine the awards to be made to the property owners, and that the awards had been made and confirmed. The city gave evidence tending to show that in those proceedings the owners of those parcels who now claim damages upon the theory that Seventh and Eighth avenues and Walnut street were closed on the 2d day of November, 1895, gave evidence of their damages to the parcels, part of which were taken in the proceedings to open Townsend avenue and East One Hundred and Seventy-second street upon the theory that Seventh and Eighth avenues and Walnut street were then open and that they had valuable easements therein of light, air and access. After receiving this evidence the commissioners in this proceeding refused to consider the basis upon which the other commissioners made their awards. They say with respect to this in their report: “We have not considered it necessary to determine whether in street opening proceedings, where portions of plots for which we have awarded damages were acquired after such plots were damaged by the closing of streets upon which they abutted, the awards were made in such proceedings on the assumption that such lands still had easements of light, air and access over the streets for which we have awarded damages.” The city claims that this was error. It is not claimed that the record other than the testimony in the other proceedings, showed that any of the awards were made upon the theory that Seventh and Eighth avenues and Walnut street were then open. The city does not claim that the landowners are estopped from now claiming that these avenues and this street were closed. It merely contends that the commissioners should have considered the fact that the landowners introduced evidence upon the theory that these avenues and this street were then open and that it is probable that such evidence influenced the awards and resulted in an increase of the awards over the damages to which the owners were entitled upon the theory upon which the landowners have made claims in this proceeding, viz., that these avenues and this street were closed by filing the maps. There being no estoppel of record, it would seem that the commissioners in this proceeding acted upon the correct rule. The remedy of the city was to present the question in the other proceedings and have an adjudication of record thereon which would probably have constituted an estoppel. I think it should now be presumed that the awards in the other proceedings were made upon the proper basis and that the commissioners in this proceeding were not at liberty to speculate as to what, if any, additional compensation the owners received in the other proceedings over and above that to which they were legally entitled upon the construction' of the statute with respect to the time of closing adopted by the commissioners in this proceeding.

In determining the just compensation to be awarded to the owners of lands, the damage parcels show the parcels as they- stood at the time the maps were filed which closed the avenues and street within the boundaries of this block. After the commencement of this proceeding and before the awards in question were made, the city acquired parts of some of these parcels for Townsend avenue and for One Hundred and Seventy-second street, but notwithstanding that fact, the damage parcels were considered intact and evidence was received tending to show the damages to those parcels as they existed at the time the avenues and street were legally closed, namely, the date of filing the map pursuant to the provisions of chapter 1006 of the Laws of 1895, and evidently the awards were made as of that date, without talcing into consideration the fact that subsequent to that date parts of the parcels had been acquired by the city as aforesaid. As I understand the record, no question was raised on the hearing before the commissioners or at Special Term or by the appellant in this court, with respect to the right of "the owners to recover damages to the parcels as they existed at the time the avenues and street became legally closed. The only claim made by the city in this regard was, as has already been stated, that the commissioners should have taken into considei’ation the probability that these landowners received awards in the other street opening proceedings on erroneous theories, and, that, therefore, if awarded on the correct theory in this proceeding, they will receive more than just compensation. The city, of course, does not concede the correctness of the view herein expressed that the avenues and street in this block were closed upon the filing of the map, on account of the fact that Jerome avenue bounded the block in part and was a public street, opened and in use; but the city claims that if this be the proper construction of the statute, then these landowners received awards in the other proceedings upon an erroneous theory and will thereby obtain more than their actual damages. The right of the claimants to damages as of the time the avenues and street were legally closed, and to their respective parcels as they existed at that time, has been questioned, however, during the consideration of the appeal and requires attention. I am of opinion that the parties and the commissioners proceeded upon the correct theory in this regard. The moment the avenues and street became legally closed the right of the landowners to damages accrued by virtue of the provisions of sections 4 and 14 of chapter 1006 of the Laws of 1895. Ordinarily, where lands or easements therein are acquired for public purposes, the private title or easements are not extinguished until just compensation therefor has been made, but where the right of eminent domain is exercised by the State or a political division of the State, the Legislature at times provides for the extinguishment of the title and easements at a fixed time in advance of the making of just compensation and gives the owner, as a substitute for his land or easements, an adequate remedy for damages. Chapter 1006 of the Laws of 1895 contemplates the extinguishment of both public and private easements in discontinued streets in advance of the making of just compensation, and upon the legal discontinuance of the street, the Legislature has, by section 4 of the statute, made it the duty of the corporation counsel to forthwith institute condemnation proceedings for determining the just compensation to be made for the interests acquired; and" by section 14 of the act, under which these claimants are in court, either the corporation counsel or the property owners could ask in a proceeding of this nature to have the just compensation that should be made for the closing of the street determined by the commissioners appointed to open the contiguous street, which Walton avenue concededly is. If, as I think, the right to compensation accrued to the owners the moment the avenues and street became legally closed, then it is quite clear that the just compensation to which they are entitled has to be made as of that time. Their damages consisted in the depreciation of the value of their lands by the legal closing of the avenues and street and the termination of every right they had to have them maintained as public avenues or streets or to use the same for ingress or egress to their respective parcels. Whether the owners of the fee of the discontinued avenues and street did or did not inclose the same, as authorized by the statute, or prevent the use of the same for ingress or egress to the parcels of the respective claimants, therefore, is quite immaterial. The avenues and street being legally closed, the right to actually close them existed and any further user, if there was further user, which I think does not appear, was by sufferance and not as matter of right. The statute being constitutional and the avenues and street having been legally closed, which terminated the rights of the property owners therein, the Legislature has substituted for those rights a claim for just compensation, to be asserted under a statute. This was a personal claim which accrued to the owner of the property at the time of the legal closing of the avenues and street and the cutting off of his rights therein by the filing of the map. The just compensation to which each owner is entitled is the depreciation in value of his parcel of land by the legal closing of the avenue or street, and the right thereto accrued at once, without regard to the question as to whether the streets were thereupon actually closed, as they might have been, or whether the property owners were permitted to continue to use them, and regardless of whether or not the owner continued to hold the title to the parcel which was damaged by the closing of the avenue or street, or whether or not he thereafter parted with title voluntarily or title was taken from him in invitum, for those considerations could not affect the quantum of damages or the right thereto, which does not run with the land. (King v. Mayor, etc., of N. Y., 102 N. Y. 171; Matter of Grade Crossing Commissioners, 64 App. Div. 71; affd., 169 N. Y. 605 ; Johnson v. Pettit, 120 App. Div. 774; Matter of City of New York (Newtown Creek Bridge), 128 id. 150; Matter of Mayor (Trinity Avenue), 116 id. 252; Harris v. Kingston Realty Co., Id. 704; Matter of Seventh Ave., 59 id. 175. See, also, Wehrenberg v. Seiferd, 125 id. 527.) The city does not claim that on the evidence and upon this theory the awards for these parcels are excessive. It only claims, as already stated, that the commissioners should have taken into consideration the fact, which the city claims is indicated by the evidence before the commissioners in the other street opening proceedings, that in these proceedings these owners received awards upon a different theory, and that if they are now given awards on this theory it will result in their getting more than the amount to which they are entitled, and, in effect, to a certain extent double damages; but, as has been observed, that question could not properly be considered by these commissioners.

If it were not for other special objections to some of the damage parcels in this block, which will be considered presently, these views would lead to an affirmance as to all parcels within the block in .question which embraces parcels Nos. 24, 28, 29, 30 and 34. There are no further objections to the awards for parcels Nos. 28 and 30.

An award was made for damage parcel 29 to Henry D. Clark as owner. Clark is appellant with respect to an award made for another parcel not in this block and is respondent with respect to this and one other appeal. The learned counsel for the city asserts in his points that no proof either of Clark’s title or of his damages to this parcel was made. The learned counsel for Clark, as respondent, refers us to no part of the record containing such proof and we have been unable to find any. The city, by its objections duly filed, challenged this and other awards upon the grounds, among others, that the petitioner had not shown that he was legally entitled to receive any award, and that the evidence was insufficient to justify the award or any portion thereof. A specific objection was also made in a separate paragraph to the effect that the award was made upon the erroneous theory that Seventh avenue was closed. That, however, was not a waiver of the general objection. The respondent Clark was the moving party, and it was incumbent upon him to show his title and his damages. Having failed to do so, the award must be vacated.

An award of $9,040 was made for damage parcel 24 in this block to Henry Edelmuth, as sole executor of Adolph Edelmuth. The objections filed to the report of the commissioners by the city relate to all of the parcels for which awards were made. The learned counsel for the city, in his statement of the facts, questions the jurisdiction of the commissioners to make an award for a greater sum than the amount specified in the claim filed with the comptroller, but a separate point presenting this question is not contained in his brief. The learned counsel for respondent Edelmuth, however, assumes that this question would be presented, and concedes that the claim filed with the comptroller, which is not in the record, was for $2,000 only. The commissionez’s, in their report with respect to this award, say: “We have determined that Henry E. Edelmuth, as the executor of Adolph Edelmuth, deceased, is entitled to the award made for Damage Parcel Mo. 24, notwithstanding that said award is greater than the amount specified in the claizn filed by hizn, as the claim filed by sozne of the parties who are beneficially interested in this award gave sufficient notice.” It is to be observed that the executor is acting in a representative capacity, and it is urged that the innocent beneficiaries should not in any event suffer on account of his failure to specify a claim for an adequate amount of damages. The statutory provision with respect to filing claizns is contained in section 5 of said chapter 1006 of the Laws of 1895. It is not entirely clear, in my opinion, that this section relates to a street discontinued — as were the streets in question — by their omission as streets from a map showing a permanent plan of the streets to be retained and opened in a particular section of the wards in question, pursuant to the provisions of law applicable thereto. There is room for argument that section 5 with respect to filing claims relates only to streets discontinued, pursuant to the provisions of section 3 of said act, after the filing of a map or plan of permanent streets, for section 4 of the act requires that the city institute proceedings to ascertain the damages caused by the closing or discontinuance of streets which are closed or discontinued by the filing of a final map of a permanent plan, pursuant to section 2, and a similar provision is contained in said section 5 with respect to streets discontinued or closed by filing any map pursuant to that act. This constitutes a repetition unless section 5 relates to streets closed or discontinued, as provided in section 3, in which case there would be reason for requiring the presentation of a claim, because the landowner could not institute the proceedings himself as he may here, where the plan involves opening new streets. Moreover, the claim is required to be filed, not to be audited, as are other claims, but to have proceedings instituted by the city to have his damage appraised. But under section 14 the property owner may himself institute the proceeding, and hence there seems in those cases to be but little if any reason for requiring the city to institute it. Section 5 appears to have been deemed applicable to all such claims in the cases which have heretofore been before the court (Matter of Spuyten Duyvil Road, N. Y. L. J. June 1, 1903, and Matter of Mayor, Vanderbilt Ave., 95 App. Div. 533), and perhaps it is no longer an open question in this court.

It is, however, I think, unnecessary to consider this question further, for assuming that it was necessary that the claim should be filed, I am of opinion that the claim filed was sufficient to authorize the commissioners to award the actual damages. The provision of section 5 with respect to filing claims is as follows: “ Provided, however, that within six years after the filing of such map any owner or owners interested and affected by such discontinuance and closing shall present to the chief financial officer or comptroller of such city a written statement or claim for compensation, and a request that such proceeding be instituted for the ascertainment and determination thereof, or be forever barred from claiming compensation for such closing or discontinuance.” It is apparent that the object of the claim was not to procure a settlement thereof, but to have proceedings instituted to ascertain the damages sustained by the claimant. In that view it seems that it was not vital to the validity of the claim that the claimant should state with accuracy the amount of the damages to which he deemed himself entitled.

Eighth avenue southerly of Jerome avenue was a cul de sac only a few hundred feet in length. The outlet to Jerome avenue was through this new block, through which, it became legally closed by the filing of the map on the 2d of November, 1895, as has been shown. It ends opposite damage parcel 32, just southeast of the new Townsend avenue, as shown on said map. Damage parcels 32 and 33 are not in the block in question but both front on Eighth avenue just beyond it. Their only outlet was through Eighth avenue northerly to Jerome avenue. This outlet became legally closed through the block within which streets became, according to the ruling already made herein, legally closed on the 2d day of November, 1895. The claims with respect to these two parcels, while not falling within the letter of the statute, fall within the fair intent and meaning thereof, because the part of Eighth avenue which remained open in front of these parcels was of no value as a means of ingress or egress to or from these parcels. I am of opinion that this construction will best accord with the legislative intent and will be the' most practicable. The only other construction that might be given is that Eighth avenue within the block became closed as to property owners within the block, but not as to other property owners. That would doubtless be a literal construction of the statute, but it would thwart the purpose of the Legislature in declaring that the part of the streets legally closed might be inclosed by the owners of the fee. I am of opinion that it was intended to terminate all public and private easements in that part of the street declared to be closed and not merely to terminate those easements as to property owners within the same block and leave them outstanding as to other property owners, which would require that the streets remain open indefinitely, for there is no time limited within which the city must open the new streets, upon the opening of which only on this construction would the easements of these claimants in Eighth avenue through the block bounded by Jerome avenue be terminated. Another difficulty with this construction would be that the owner of a parcel in the block which we have been considering, or, in a similar case, who owned the fee of the discontinued street, would be awarded just compensation on the theory that he was at liberty to inclose the discontinued street, whereas he would be obliged to leave it open for ingress and egress to parcels of land in other blocks. These claimants were, therefore, entitled to have their damages assessed as of the date when their outlet through Eighth avenue was shut off by the closing of the northerly end thereof. The commissioners proceeded on this basis in making their awards, and I do not understand that the city seriously contends that this was an erroneous theory, provided Eighth avenue within the block aforesaid became closed on the 2d day of November, 1895.

The claimants for the damages to damage parcels 32 and 34, the latter parcel being partly within the block in question, were Louis Brass and Emilie Hamann. An ejectment action was pending in the Supreme Court between these parties. The heirs of Emilie Hamann duly filed a claim and obtained an order to have their damages ascertained. The commissioners directed the payment of an award equal to two-thirds of the total amount of damages to these heirs, provided they be successful in the ejectment suit, and made no award as to the remaining one-third interest, apparently upon the theory that the other heirs entitled thereto were not before the commissioners; but in the event that the heirs should be unsuccessful in the ejectment suit, they awarded the payment of the total damages to Louis Brass, and with respect to parcel 34 the commissioners made an award of two-thirds of the damages to said heirs, provided they should be successful in the ejectment suit and made no award in the event they should be unsuccessful. This was upon the theory, as stated by the commissioners, that Louis Brass had obtained an order for the assessment of his damages with respect to parcel 32 but not with respect to parcel 34. Louis Brass does not appeal nor does he even appear as to these parcels. The learned counsel for the city contends that no order was obtained as to either parcel and none is found in the record. The only jurisdiction which the commissioners have to make an award is by an order obtained pursuant to the provisions of section 14 of the act of 1895, and by such orders they were limited to making awards to the petitioners. As there is no order in the record authorizing the commissioners to ascertain the compensation to which Louis Brass is entitled, there was no jurisdiction to make an award to him and, therefore, the alternative award made to him with respect to parcel 32 must be vacated.

The city also claims that the commissioners erred with respect to the award made to John J. Schaclit for damage parcel 39, shown on damage map No. 4. This parcel is on section 14 of the final maps of the twenty-third and twenty-fourth wards, filed in the office of the register of the city of New York on the 17th day of December, 1895, which was made pursuant to the same authority as section 9 of the final maps already considered. The damages are claimed on account of the closing of Punett street, which was not a street shown on either map of the village of Mt. Eden. This map indicated the former existence of Punett street within the block bounded by Jerome avenue, Tremont avenue, Walton avenue and East One Hundred and Seventy-seventh street, and shows that it was intended to be closed. Not only was this block bounded by Jprome avenue, but this parcel had a frontage on Jerome avenue and the claimant ■ owned the fee of Punett street. The award was made upon the basis that Punett street was an open public street and was closed by the filing of the map on account of the fact that Jerome avenue was retained as it previously existed; but the damages were awarded not as of December 17, 1895, when section 14 of the final maps was filed, but erroneously as of November 2, 1895, when section 9, which did not embrace these lands, was filed. The city, however, makes no point with respect to this. The observations already made show that Punett street, if it existed as a public street, was closed by the filing of the map on account of the fact that the block was bounded by Jerome avenue. A serious question is here presented with respect to whether Punett street was a public street. The claimant Schaclit took title to a plot of ground on the northeast corner of Jerome avenue and Waverly street in 1886, having a frontage of about 254 feet on Jerome avenue and 346 feet on Waverly street, extending in depth on the easterly line about 243 feet and on the northerly line about 283 feet. On the map filed by the department of public parks in 1879, to which reference has been made, Punett street was shown as intended to be laid out, but not as an existing street. It was to run from Waverly or One Hundred and Seventy-seventh street to Burnside avenue, a distance of two blocks, passing across the southeasterly part of this parcel. The testimony of the claimant shows that when he took title to this plot he went to the department of parks and found this street laid out on said map, and thereafter and during the year 1886 he subdivided his property into lots upon a map and laid them out with reference to Punett street as plotted on said map. It does not appear that this map, made by the owner, was filed in any public office of the city, nor does it appear whether or not the lands embraced within the lines of Punett street, as thus plotted, have ever been exempted by the public authorities from taxation. The owner then sold off some lots on Jerome avenue and one interior lot on Punett street and another on the corner of Punett and Waverly or One Hundred and Seventy-seventh street. In about the year 1902 he sold another interior lot on Punett street. These three lots were bounded on Punett street, but the fee to the street was retained by the grantor. In 1892 the owner built a stable on the part of the parcel lying southeasterly of Punett street, slanting the building at one point to accommodate it to the line of Punett street. The testimony of the claimant tends to show that Punett street for a distance of about 250 feet northerly of Waverly or One Hundred and Seventy-seventh' street was open and fenced by him and actually used by the public from 1867 down until about the year 1902. It was neither paved nor graded, but according to his and other testimony gutters had been constructed along the sides and it could be used by vehicles and persons on foot and was so used. The undisputed evidence shows that the rest of this alleged street to the north was impassable and was never used by the public. It has not been shown by whom the gutters were made. There is some evidence in the record tending to show that from time to time workmen with wagons were seen in Punett street near Waverly street at work removing sand from the gutters which was washed down Waverly street by the storms so that the water would flow off to the north ; that these men at times filled holes in that part of Punett street which -was open to public use and cut the grass in the same, and that these men also worked on Waverly or One Hundred and Seventy-seventh street and on Jerome avenue which were public streets. There was no dwelling house on the street and the only buildings were a carriage and wagon factory on the westerly side, on one of the parcels conveyed by the claimant, and a blacksmith shop on his own land on the easterly side of the street. The only use made of the street was for access to those buildings. Said section 14 of the final maps shows Punett street as plotted on said map filed by the park department and shows it closed.

It is quite clear that the plotting of Punett street as a new street , on the map filed by the park department affected no right, title or interest of the owner. Down to that time there had been no attempted dedication of those lands as a public street and there was nothing for the public authorities to accept.' As already observed, the map was prepared upon the theory that this was to be laid out as a new street and not upon the theory that there was a dedicated street to be accepted. Assuming that the acts of the owner thereafter indicated an intention on his part to dedicate the street, it would seem that it would require some further act of the public authorities accepting the same. There being no evidence that the map prepared by the owner with reference to which he sold his land was filed so that it became a public record, it is doubtful whether he would have been estopped from claiming full value for the land had the city instituted condemnation proceedings. In view of the fact that the alleged street was merely a cul de sac and led only to these two places of business, the evidence with respect to the use of the street by the public is too meagre to constitute an acceptance. The evidence perhaps gives rise to the inference that the men who worked on the street were employees of the city, but it is not entirely clear that the work they did was for the purpose of keeping the street in repair for public travel, and some of it, at least, indicates that they may have been trespassers and that their object was merely to open the gutters to enable the waters to run from the public street.- In any event, it was not such as to give rise to a presumption that it was authorized by the city. If, upon a rehearing, it should be established that this was a public street, it is to be borne in mind that the claimant at the time it was closed owned the fee, and it would seem that his damages should be assessed upon the basis of the extinguishment of the public ease- merits only for, owning the fee, lie retained the same right of ingress and egress and lost merely the benefit of having his property fronting upon a public street which presumably would be maintained as such.

All of the other awards were made for parcels within blocks shown on section 9 of the final maps of the twenty-third and twenty-fourth wards, wholly bounded by new streets and avenues which had neither been dedicated nor acquired by the city nor were in use as public streets at the time of the filing of said map. In each instance the commissioners have proceeded upon the theory that the streets which were intended to be closed and discontinued by this map became legally closed and discontinued when title to the first street or avenue ■ bounding the block in whole or in part vested in the city, and in no instance is there any evidence that such street had been actually physically opened for public use. The city contends that the commissioners erred in ruling that the streets became legally closed, and that the right to damages accrued to the owners upon title vesting in the city to one of the new streets bounding the block in part. I am of opinion that this point taken by the learned counsel for the city should be sustained. Although, as already observed, the Legislature has not by section 2 of the act of 1895 provided in all cases that an open existing street was not to be closed until the property owner should be afforded access to his premises through a new street, yet, to the extent that an attempt has been made in this direction, it is upon that theory. It was evidently intended that streets then in use should not be discontinued until at least one street bounding the block should be opened for public use. This view was expressed by Mr. Justice Scott in Johnson & Co. v. Cox (42 Misc. Rep. 301), which was cited with approval by this court in Matter of City of New York, Jerome Avenue (120 App. Div. 201). Our decision in the last-mentioned case was modified by the Court of Appeals and affirmed. That court, however, agreed with our construction of the statute in this regard, and squarely held that the statute has reference to actual physical opening of the new street. (Matter of City of New York, 192 N. Y. 459.) All of the other claimants, therefore, at the time of presenting their claims still retained the same right to use the streets which are to be discontinued that they theretofore enjoyed, and their claims were prematurely filed before any right of damages had accrued. With respect to these awards, as we view the evidence, the commissioners had no jurisdiction, and were it not for the fact that it is evident that the amount of the awards has heen assessed upon property benefited, it would be unnecessary to refer the matter hack to the commissioners, but on account of such assessments for benefits, it seems unavoidable that the matter must be remitted to the commissioners. On this matter, however, we have not been aided by the views of counsel, aud it will receive further consideration, if necessary, on the settlement of the order.

It follows, therefore, that the order in so far as it confirms the report of the commissioners as to awards for damage parcels Nos. 24, 28, 30, 33 and 34 should be affirmed, with costs to respondents separately appearing, and with respect to the awards made-for damage parcel 32, other than to Louis Brass, it should be affirmed, with costs to respondents, and in so far as an award is made to Louis Brass, it is reversed, without costs, and with respect to the award for damage parcel 39, and with respect to all other awards, it should be reversed, without costs, and the matter referred back to the commissioners for a rehearing, or to revise their report, both as to awards and assessments of benefits, but the order is to he settled on notice, and the direction with respect to referring it back to the commissioners may then be further considered if necessary.

McLaughlin and Houghton, JJ., concurred; Ingraham, J., dissented, in part.

Ingraham, J. (dissenting in part) :

The city of New York instituted this proceeding to acquire title to the real property necessary for the opening of Walton avenue from One Hundred and Sixty-seventh street to Tremont avenue in the city of New York. While that proceeding was pending the owners of certain real property applied to the court to have commissioners appointed in this proceeding to determine the damage caused to certain property owned by them in consequence of the discontinuance of certain streets and avenues upon which their property abutted. The commissioners of estimate and assessment made a report awarding various sums of money to the owners of property abutting on such closed and discontinued streets, and from the order confirming their report the city of New York appeals.

This application was made under the provisions of chapter 1006 of the Laws of 1895. That act became a law on the twelfth of June of that year, and it provided generally that upon the filing of a map upon which existing streets and avenues were not shown as continuing to be permanent streets of the city, that such streets and avenues not shown upon the map shall “ cease to be or remain for any purpose whatever a street, avenue, road, highway, lane, alley or thoroughfare, and the owner in fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used.” (See § 2.) The final map of the twenty-third and twenty, fourth wards covering the territory in this locality was adopted by the board of street opening and improvement on June 17,1895, and filed as required by law on October 31,1895, and November 2,1895, and confirmed by chapter 712 of the Laws of 1896. Upon this map Walton avenue was laid out as an avenue upon the permanent plan of the city of New York, but certain other streets and avenues which were then open and existing streets and avenues were not laid out upon the map, and thereby by force of the statute ceased to be or remain for any purpose whatever a street or avenue of the said city of New York. This proceeding was instituted for the purpose of acquiring property to open Walton avenue in March, 1897, and on the 18th of March, 1897, an order was entered appointing commissioner’s of estimate and assessment, and such proceeding is still pending. Subsequently the owners of property abutting on the various streets and avenues closed and discontinued by the filing of the map of the city of New York presented petitions to the court asking to have the damages to their property caused by the closing and discontinuance of the said streets ascertained by the commissioners. An order was thereupon entered directing the commissioners of estimate and assessment theretofore appointed in this proceeding to ascertain the damage, if any, which should justly be made and legally awarded to the petitioners for the loss and damage, if any, sustained by certain premises described by reason of the closing, discontinuance or abandonment of the streets or avenues which had been so closed.

The question is again presented as to the construction to be given to the provisions of chapter 1006 of the Laws of 1895. It must be considered, I think, as now definitely determined, that by that act not only were these streets and avenues not retained upon the permanent plan of the city of New York and closed as public streets and avenues, but also as private ways or roads, and that after the streets and avenues retained upon the map or plan of the city were opened the owners of the fee of the discontinued streets were authorized to inclose the same free from any easement, public or private, and that the damages caused to any owner of property abutting on any such closed or discontinued street could be assessed or determined by commissioners appointed as provided for by the act and paid by the city of New York (Matter of Mayor, Vanderbilt Ave., 95 App. Div. 533; 119 id. 882; affd., 189 N. Y. 551) and that this act is constitutional. (Matter of Mayor, 157 N. Y. 412.) It is, however, well settled that the owner of property abutting upon a public street is not entitled in the absence of some legislative authority to damages sustained in consequence of the closing of a street or highway, and to entitle the-owners of property abutting upon the closed or discontinued streets to compel the city of New York to pay the damage sustained by the discontinuance or closing of either the public or private easements in the streets so closed and discontinued they must bring themselves within the provisions of the law providing for the assessment and payment of such damage, and, therefore, to entitle these petitioners to compensation they must be entitled to it under the provisions of this act. It seems to me, therefore, that the only question presented is whether, under the provisions of the act of 1895, the various petitioners who have received awards for the damages sustained by the property have brought themselves within the provisions of this act.

The brief filed on behalf of the city asked to have determined the question as to when these streets ceased to be or remain for any purpose whatever a street or avenue. Section 2 of the act provides that: “ Upon and after the filing of such map the streets, avenues and roads shown thereon shall be the only lawful streets, avenues and roads in that section of such city shown upon such map or plan, and all other former streets, avenues, roads, * * * theretofore laid out, dedicated or established not shown thereon, and which are not then actually open or in public use, shall from and after the filing of such map or plan cease to be or remain, for any purpose whatever, a street, avenue, highway, "x" •• *. But in all cases where any such street, avenue, road, highway, lane, alley or thoroughfare is at the time of the filing of such permanent map or plan actually open and in public use, such parts or portions thereof as are included within the boundaries of any square or plot of ground made by the intersection of any streets, avenues or roads laid out by the local authorities upon the permanent map or plan of said city or district thereof in which such square or plot is situated, shall ever after any one of the streets, avenues or roads bounding such square or plot shall be opened, cease to be or remain for any purpose whatever a street, avenue, road, highway, lane, alley or thoroughfare, and the owner in fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used.” This provision seems to me to be clear. So far as a street or avenue is open and in actual use it continues to be such a street or avenue even after the making and filing of the plan until a street, avenue or road bounding the square or plot within which the said street or avenue was located shall be opened; but when a street bounding such square or plot shall be opened the street or avenue within such square or plot shall then cease to be for any purpose whatever a street or avenue. We have held in Johnson & Co. v. Cox (42 Misc. Rep. 301; affd., 124 App. Div. 924) that the opening of the road here provided for meant the actual physical opening of the street so that it could be made available for use. But when a street bounding upon such a square or plot of land is actually and physically opened, then it is that the portions of the streets not shown upon the permanent plan cease to be streets or avenues for any pulpóse. It is not expressly provided in the statute that the street or avenue actually opened should afford access to the land abutting on the street that is closed, but I think that that can fairly be inferred to have been the intention of the Legislature, the object being to afford to the owners of property abutting on the discontinued street such means of access to their property as the permanent streets would afford before the closed and discontinued streets should be actually closed for public use. But the moment a street becomes an actually discontinued street under this provision of the statute, then the damage caused to the abutting property by the discontinuance of the street at once accrues, and it is the damage sustained at the time the street becomes an actually closed street to which the abutting owner is entitled. (Matter of Mayor, etc., of N. Y., 166 N. Y. 495.)

As shown upon the permanent plan of the city there was a block or plot of ground bounded on the west by Townsend avenue, on the east by Walton avenue, on the south by One Hundred and Seventy-second street, and on the north by Belmont street. Across this plot of ground diagonally there ran certain old streets which were not shown upon the map and which were discontinued, known as Sixth avenue, Seventh avenue and Walnut street. (Matter of Mayor, 28 App. Div. 143 ; 157 N. Y. 409.) For the closing of these three streets damages have been awarded, some of which are objected to by the city. The owners of certain property within the bed of Townsend avenue as laid out on this map have been awarded damages caused by the closing of the streets not laid out on the map which intersected this block. In this I think the commissioners were wrong, for at most the owners of lots included in Townsend avenue, which was laid out on the map, were entitled to merely nominal damages. Townsend avenue had been laid out as a public street. So much of the bed of the discontinued street as was included within the boundaries of Townsend avenue', the continued or new street, remained a public street. Before it could be appropriated for that purpose it would be necessary for the city to acquire the title of the property in the street. But the discontinuance of the discontinued street would certainly cause no damage to that property. Assuming that in the block bounded by Townsend avenue, Jerome avenue, One Hundred and Seventy-second street and Belmont street the discontinued streets were closed upon the tiling of- the map because of the fact that Jerome avenue was an open existing street at that time, none of the other roads through the block to the south were closed by the filing of the map or until a street was opened which bounded upon that block, and when the city acquired title to the bed of Townsend avenue and appropriated the property ®f these petitioners in the bed of that avenue, whatever title or interest the owners of that property then had, which would include any right of damages against the city of New York, was acquired by that proceeding. In awarding damages for that property, if the commissioners held that tlie bed of the discontinued streets within Jerome avenue belonged to the owners of the fee without being subject to an easement, then they would give to such owners the full value of the land discharged from the easement. If they held, however, that the owners of the abutting land on the discontinued streets still had an easement, then the award for the abutting land would be enhanced by the easement appertaining to it in the bed of the discontinued street. The city proved, or offered to prove, before the commissioners the fact that the land constituting Townsend avenue had been acquired by the city prior to the commencement of the proceeding to assess these damages, and upon that proof, whatever may be the actual situation of these discontinued streets, no substantial damages for the discontinuance of the street could be awarded to the owners of property in the bed of Townsend avenue, the title to which had been acquired by the city of New York.

The next point taken by the city which it is necessary to discuss is as to Pnnett street. I think it is entirely immaterial whether Punett street was ever dedicated as a public street. It had been actually used as a street, and persons who had bought property abutting on the street had an easement which was discontinued by the filing of the map. It had been an actual, open and existing street that was under the act of 1895 closed and discontinued as a street for all purposes, and the owners of abutting property were entitled to compensation for the damages sustained thereby. Whether it was a public or private road the owners of abutting property were entitled to be paid by the city of New York the damages that they sustained because of its discontinuance as such a road. The act so declares and the Court of Appeals has held that the act is constitutional. The same principle would apply to Walton or Sheridan avenues and Eighth avenue.

I think it also clear that a claim must be filed within six years after the street is actually closed and discontinued and for all claims not filed within that time the owner is barred. It would appear, however, that an actual bona fide claim which merely by mistake contained a wrong description of the property could be amended and such mistake disregarded.

The city also complains as to an award having been made to a judgment creditor of an owner of a lot who would have been entitled to damages. Before these proceedings were commenced the lien of the judgment had expired. The judgment creditor had acquired no lien upon the award nor any assignment of the right of his debtor to the award. It would appear that a receiver in supplementary proceedings had already been appointed in whom was vested the right to receive this award and certainly the judgment Creditor who had no other title to the award except the mere fact of having a judgment where the lien upon the real property had expired was not entitled to the award. As the judgment debtor, the owner of the property, has hied no claim for the award and the judgment creditor has no lien upon it, that award should have been disallowed.

This seems to dispose of all the points raised by the city.

I concur with Mr. Justice ¡Laughlih, except as herein indicated, but I think that the case should be sent back to the commissioners to amend their report in accordance with the views here expressed.

Order as to certain awards affirmed, with costs, and as to certain awards reversed, without costs, and case remitted to commissioners for revision to the extent stated in opinion. Settle order on notice.  