
    In the Matter of the Application of The City of New York, by the Corporation Counsel, Respondent, for the Appointment of Commissioners of Estimate and Assessment to Ascertain and Determine the Compensation Which Should Justly Be Made for the Discontinuance and Closing of West One Hundred and Fifty-first Street, from the Easterly Side of Riverside Drive Extension to the United States Bulkhead Line of the Hudson River, Twelfth Ward, Borough of Manhattan, City of New York. Jessie Gillender, Appellant.
    First Department,
    June 4, 1909.
    Municipal corporations — closing street, city of Hew York—power to amend proceeding— amendment denied where it will work injustice.
    Although the court under section 15 of chapter 1006 of the Laws of 1895 has power to amend defects and irregularities in proceedings to discontinue streets in the city of New York, it will not, after a certain street has been discontinued by resolution adopted and map filed under said act and after the city has been enjoined from cutting ofE access to the lands of an adjoining owner unless the' fight be taken by eminent domain and due compensation made, amend the proceeding so as to reopen a'disconnected portion of the street, where the effect of such action wijl give the adjoining owner no access to other parts of the city and may deprive her of the right to damages.-
    Appeal by Jessie Gillender. 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 2d day of. April, 1909, amending the proceedings herein by discontinuing a. portion thereof.
    • Charles De Hart Brower, for the appellant.
    
      Thomas C. Blake, for the, respondent.
   Scott, J.:

In this proceeding' to discontinue and close West One Hundred and Fifty-first street from ‘the easterly side of Riverside drivé extension to the bulkhead line in the North or Hudson river, Jessie Gil-lender appeals from1 an order, entered on motion of the corporation counsel, so amending the proceeding as to discontinue it as to that. portion of' the street which lies between the right of way of the New York Central and Hudson River Railroad Company and the bulkhead line. ' The facts which underlie this proceeding were quite fully discussed in Gillender v. City of New York (127 App. Div. 612), and .it will be unnecessary to do more than briefly state them now.- The appellant is the owner of certain lands on either side of Twelfth avenue, extending from West'One Hundred and Fifty-first street to One Hundred and Fifty-second street. The property east of Twelfth avenu'e extends to. the right of way of the -New York Central and Hudson River Railroad Company and comprises a strip about eleven feet in width on West One Hundred and Fifty-first sheet, and running along Twelfth avenue to One' Hundred and Fifty-second street.. The property west of Twelfth avenue extends from that avenue to' the bulkhead line from the northerly line of One Hundred and Fifty-first street to the southerly line-of One Hundred and Fifty-second street. Both parcels were obtained originally through a water grant from the mayor, aldermen and commonalty of the city of New York to Richard Carman in 1852, and -both parcels are below the high-water line as it then existed. Under the grant the city retained title to the bed o£ Twelfth avenue, One Hundred and Fifty-first and One Hundred and Fifty-second streets to be used for street purposes. One Hundred and Fifty-first street was legally opened on April 19,1876, and is now physically opened except where it lies under water, and constitutes the only means of' access to appellant’s property from the rest of the city. Appellant’s property is rented to various tenants, and One Hundred and Fifty-first street has been used by her and her tenants as the sole means of access to the property.

.To the east of said premises' there is now being constructed a public improvement known as the Riverside drive extension at a level of upwards of twenty feet above One Hundred and Fifty-first street. As originally designed, it was proposed to carry One Hundred and Fifty-first street under the extension by means of an archway, which would leave the street open and unobstructed. Subsequently action was taken by the local authorities to change the grade of One Hundred and Fifty-first street (and other streets) east of the extension so as to bring such grade up to the level of that of the extension. The result of thus changing the grade of One Hundred and Fifty-first street east of the extension, and leaving it unchanged to the west thereof, would be to build a wall twenty or thirty feet high across One Hundred and Fifty-first street at the Riverside drive extension and thus effectually cut off all practicable access to appellant’s property through that street, the westerly end of which lay in the waters of the Hudson river. Twelfth avenue is also for the most part under water and has never been actually opened. It was thus proposed to isolate appellant’s-property and destroy -its usable valúe. Under .these circumstances, in an action brought by the present appellant against the city of New York, an injunction pendente lite was granted restraining the city and its contractors from closing or obstructing said One Hundred and Fifty-first street so. as to deprive the appellant and her tenants from using the same as a means of access to her property. In his opinion rendered on granting the motion for an injunction the learned justice at Special Term suggested that proceedings should be taken under chapter 1006 of the Laws of 1895, to legally close as much of One Hundred and Fifty-first street as lay west of the Riverside drive extension. This suggestion wa adopted and proceedings were initiated for . closing the street and commissioners of estimate 'and appraisal appointed. A motion.was- then made to dissolve the above-mentioned injunction. This motion was. denied at Special Term, and the order denying it affirmed by this court. (Gillender v. City, of New York, supra.) The commissioners of estimate'and assessment ■ made a report in which they awarded-to appellant substantial damages. for the destruction of her private easements in One Hundred. • and ’Fifty-first street. This report was not confirmed and the matter was referred to new commissioners, who have also reported, awarding to appellant reduced but still substantial damages." Pending the final report of the last-mentioned commissioners, -the" board of ■ estimate and apportionment undertook, -pursuant to the provisions - of section 442 of-the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1903, chap. 409), to re-establish and relocate "West One Hundred and Fifty-first street from the- right of way of-the New. York Central and Hudson River railroad .to the bulkhead line in the Hudson river, thus attempting to re-establish One Hundred and Fifty-first- street in front of appellant’s property. The result of this yrould be to leave plaintiff’s property in precisely the position it was -when the court enjoined the obstruction "of One •Hundred and Fifty-first street. There will be no street east of the railroad right of way, between it and the Riverside drive extension, ■ and n.o practicable access to appellant’s property, and yet the street will be legally established in front of her premises. The appellant apprehends, and not without reason, that the result of this action may be. to depri ve her of all claim for damages by reason of the partial discontinuance of the proceeding, because the part of the street upon which her property abuts will remain technically open; (Matter of Grade Crossing Commissioners, 46 App. Div. 478; 166 N.Y. 69 ; Coster v. Mayor, 43 id. 399 ; Kings County Fire Ins. Co. v. Stevens, 101 id. 411 ; Reis v. City of New York, 113 App. Div. 465 ; affd., 188 N. Y. 58; People ex rel. Winthrop v. Delany, 120 App. Div. 801; affd., sub nom. People ex rel. Winthrop v. Pendleton, 192. N. Y. 533.) At the same time if that 'portion of One . Hundred and Fifty-first street lying between; the Riverside drive . extension and the railroad -right of way is. fully discontinued as a public' street the city may have a plausible ground for urging that the pending injunction against obstructing One Hundred and Fifty-first street should be dissolved. The present motion is made under section 15 of chapter 1006 of the Laws of 1895, which provides that “ The said court shall have power at any time to amend any defect or informality in any of the special proceedings authorized by this act that may be necessary, or to amend any description, or to cause other property to be included therein, or property included therein to be excluded therefrom, or to permit any person having an interest therein to be made a party thereto, or to relieve from any default, mistake or irregularity, or to direct such further notice to be given to any party in interest as it deems proper.” In so far as this provision vests discretion in the court to amend the proceedings, we certainly should not exercise that discretion in such a way as to work a manifest and serious injustice to a property owner proceeded against in invitum. (New York Central & H. R. R. R. Co. v. Marshall, 127 App. Div. 534.) We do not consider that the city is entitled as matter of strict right to the amendment of the proceedings. West One Hundred and Fifty-first street from Riverside drive extension to the bulkhead line became legally closed and ceased to exist as a public street when' the appropriate resolutions to that end were adopted by the board of estimate and apportionment, the map filed and commissioners of appraisal appointed. The appellant’s right to damages then accrued. (Matter of Mayor, etc., of New York, Walton Avenue, 131 App. Div. 696.) Owing to the peculiar situation of the property, however, it was considered that the appellant should be permitted to enjoy her private easements in the street until the amount of her damage had been ascertained and paid. (Gillender v. City of New York, supra.) As has been frequently pointed out, closing ” of a street under the act of 1895 has two meanings. So far as the legal discontinuance of the street is concerned it becomes complete when the prescribed map is filed indicating the proposed change. The physical closing, by which is meant the discontinuance of the use of the former street for street purposes, is, however, postponed until other means of access is provided by the opening of other streets or, if no other mode of access is provided, until the damages to the abutting owners have been ascertained and paid. (Matter of City, of New York, 192 N. Y. 459; Johnson & Co. v. Cox, 42 Misc. Rep. 301; affd., 124 App. Div. 924; Gillender v. City of New York, supra.) When the resolution was adopted and the map filed showing the discontinuance of One Hundred and Fifty-first street west of the Riverside drive extension, that portion of the street was discontinued and ceased to he. The resolution and map adopted and filed later did not amount technically to an amendment or partial rescission of the proceeding by which the former street was closed, but looked to a new and original street opening precisely as if no street had ever existed at that location. It doubtless would be convenient to treat the proceeding for the relocation of One Hundred and Fifty-first street as a practical rescission joto tanto of the former' proceeding for closing it, and if no injustice would be done thereby such a course might not present any practicable objection. It is apparent, however, that the attempted relocation and reopening of a disconnected fragment of One Hundred and Fifty-first street, which will be wholly under water or very nearly so, and which will give no access to the other parts of the city, is a mere device to deprive the appellant of her damages. We are of opinion, therefore, that the city of New York is not entitled to amend the proceedings in the manner permitted by the order appealed from, either as matter of strict right or in the exercise of judicial- discretion.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements.

Ingraham, McLaughlin, Lahghlin and Clarke, JJ., concurred.

Order reversed with, ten dollars costs and disbursements, and motion denied.  