
    The People of the State of New York ex rel. Henry R. Winthrop, Appellant, v. John J. Delany, Corporation Counsel of the City of New York, Respondent.
    First Department,
    July 15, 1907.
    Eminent domain—municipal corporations — closing portion of street in city of New York—damage of abutting owner—mandamus to corporation counsel.
    The Legislature has power to enact laws for the closing of streets in the city of New York, and may exercise that power through the agency of such municipal officers and by such procedure as it sees fit, although the city owns the fee in trust for street purposes.
    When under the authority of chapter 425" of the Laws of 1908, as amended by chapter 639 of the Laws of 1904, the municipal authorities have granted to a railroad a certain portion of a city street, so that the width of the street in front of the premises. of. an abutting owner has been narrowed from fifty to thirty-eight feet, such owner, by virtue of chapter 1006 of the Laws of 1895, is entitled to just compensation for the injury caused. This, although the fee of the street is in the city arid held in trust for street purposes.
    When such abutting owner, in compliance with section 5 of chapter 1006 of the Laws of 1895, has within the time limited presented to the comptroller a written claim for compensation and a request that a proceeding be instituted by the appointment of commissioners to ascertain his damage, which request has been refused, the corporation counsel will be compelled by mandamus to institute proceedings to ascertain the damage , sustained by the closing of a portion of the street.
    It is no answer to say that the portion of the street taken is narrow and that the damage is small. ■ • ,
    
      Appeal by the relator, Henry R. Winthrop, 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 29'th day of June, 1906.
    
      Merle I. St. John, for the appellant.
    
      John P. Dunn, Thomas C. Blake with him on the brief,[William B. Ellison, Corporation Counsel], for the respondent.
   Clarke, J.:

This is án appeal from an order of the Special Term denying petitioner’s motion for the issuance of a peremptory writ of mandamus directing the. respondent, as corporation counsel of the city' of New York* to institute proceedings under, the provisions' of chapter 1006 of the ¡Laws óf 1895 to ascer tain the damages resulting to the premises'of the petitioner by the closing of a portion of Depew place in the borough of Manhattan, city of New York. .

Depew place was a street fifty feet wide to the east of the Grand Central Station and running from Forty-second street north. It was originally acquired and paid for by the New York and Harlem Railroad Company under the provisions of chapter 261 of the Laws of 1884, authorizing improvements to. the station at Forty-second street, and requiring the railroad to make a fifty-foot street in this location, and providing that when made title'should vest in the city of New York for street purposes as if it had been laid out on the street map of 1807. / •

The petitioner is the. owner of an undivided one-half ;of the premise's on the easterly side of Depew place, extending from Forty-second street, to Forty-third street,, and having a depth of seventy-five feet..' Incident to the construction of the hew terminal and the changing and enlargement of the Grand Central Station under the authority and direction of chapter 425 of .the Laws of 1903, as. amended by chapter 639 of the Laws: 0f 1904, the city, acting by its proper officers,- has discontinued and closed a portion of Depew place opposite petitioner’s premises, commencing at a point one hundred and .twenty-one and eighty-three one-hundredths feet north of Forty-Second street, said strip being thirty-fi ve fee.t in length and twelve feet in depth. The petitioner alleges that as the owner-of premises upon the easterly side of Depew place he was possessed of the usual easements of light, air and access over the whole of Depew place to its f ull width as it existed prior to the said closing, and that by reason of said closing his premises became .greatly depreciated in value. The petitioner is supported by the affidavit of a real estate broker and appraiser, who avers his opinion to be that petitioner’s premises-have depreciated in value to a considerable extent by reason of the closing of the portion of Depew place.

The power of the Legislature to enact, laws for closing streets in the'city of Hew York is unquestioned, and its authority to employ the agency of such municipal officials as it shall choose to bring about such closing, or to prescribe the mode of procedure to be adopted for that purpose, is equally clear. (Fearing v. Irwin, 55 N. Y. 486; Reis v. City of New York, 188 id. 58.) Section 5 of chapter 425- of the Laws of 1903 provided that the Hew York and Harlem Railroad Company and its lessee, the New York Central and Hudson River Railroad Company, were or either of them was, authorized and empowered to acquire from the city of New York, and the city of New York, acting by the board of estimate and apportionment of said city, was authorized and empowered in its discretion to grant to said railroad corporations, or to either of them, any and all lands, or rights, interests or easements in lands in anywise owned, occupied or controlled by the city of New York within a definite territory. The said territory included Depew place, between Forty-second street and Forty-third street. It was further provided that the railroad company should make a map showing, the alterations, changes and additions in so far as they should in any manner affect any public streets, avenues or places; and that said map should be submitted to the board of estimate and apportionment for its approval. If such plans and profiles were approved by the board, evidenced by a resolution, a copy thereof ivas to be indorsed upon the plans, one copy of which so approved should' be ■filed with the board of estimate and apportionment and the other copy delivered to the New York Central and Hudson .River Railroad Company. “ Hpon such plans and profiles or any modifications thereof made as hereinbefore provided, being approved and filed as aforesaid, any and all alterations or changes in streets, avenues or public places, or - in the grade or grades, width or widths thereof, any and all modifications in or of the use of any existing street, avenue, highway or public place, or any part thereof, shown upon said plans and profiles, shall be deemed to have been duly' authorized, and the map or plan of the city of New York shall be deemed to have been changed accordingly without any further act or proceeding by or on the part of the city of New York, or.of any officer, board or department thereof.” ■

Section 4 of chapter 1006 of the Laws of 1895 provides that “ Whenever the local authorities shall hereafter make, certify and file a map or plan showing the streets, avenues, roads, public squares and places laid out and established by them as and for the permanent streets, roads, avenues, public squares and places of such city, or of any district or section thereof * * •* it shall be the duty of such counsel to the corporation * * * to procure a certified copy of the map or plan so made and filed * * * and also a map, statement or description of all the streets, roads," highways, alleys, lanes or thoroughfares, so far as the same can be ascertained which they haye not retained upon such permanent plan, and which they have discontinued and closed or intended to discontinue and close as aforesaid; thereupon it shall be the duty of the said counsel to the corporation * * * to cause application to bg made to the Supreme Court * * * for the appointment of commissioners to ascertain and determine the compensation which should justly be made to the respective owners, lessees, parties and persons respectively' entitled unto or interested in . the lands, tenements, hereditaments and .premises, rights, easements or interests therein taken, affected, damaged, extinguished or destroyed by such discontinuance and closing:”' Section 5 of said act provides that where any map or plan shall be made and filed, “ discontinuing or closing or intending to discontinue or. close any street, avenue, road, lane, alley or thoroughfare, or any part thereof, theretofore in use or laid' out or established insucli city, it shall be the duty of the counsel to the corporation * * * to take proceedings in the manner specified in this act to have ascertained and determined the compensation which should justly be made to the several owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments, and premises, or rights or interests therein taken, affected or damaged by such discontinuance or closing; 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.”

Section 6 of chapter 425 of the Laws of 1903 provides that upon the1 approval by the board of estimate and apportionment of the plans and profiles provided for in that act, the proper officers and authorities of such city are hereby authorized and it shall be the duty of such officers and authorities to take such appropriate action as may be necessary or reasonably required to carry the provisions of this act, and any such plans and profiles * * * into effect.”

It thus appears that the city was authorized to grant its rights in the portion of Depew place, here under consideration, and that upon the filing of the map and profiles, duly approved by the board of estimate and apportionment, the map of the city at the locus in quo was permanently altered and changed and that part of Depew place was closed as a street. While the act authorized the granting of the city’s rights, it did not purport to dispose of any private rights, and if such rights were property'rights, of course, they could not have been disposed, of without just compensation. The city owned Depew place in fee, but it was held in trust for street purposes, but eveii if a special trust existed, the city could have been freed therefrom by action of the'Legislature. (Reis v. City of New York, 113 App. Div. 467.)

Under the street closing act of 1895, cited supra, a right is given to the owners . of property to receive compensation where lands tenements, hereditaments and premises or.rights or interests therein are taken, affected or damaged by the discontinuance or closing of any street or part thereof. A part of the street upon which the appellant’s property abuts has been discontinued and closed. At this particular place his property formerly faced upon a street fifty feet in width. For a strip of thirtydive feet long it has been narrowed to a street thirty'eight feet in width. If, instead of closing a strip twelve feet in width, forty-five feet in width had been taken, leaving an alley of but five feet in front of the premises, it seems clear that be would be entitled to substantial compensation for the damage received from such discontinuance and closing of so ■ much of the street. “ The mere abutter, with no ownership in the bed of the street, is entitled to protection against an interference with .certain easements in the street. 'They constitute property, of which neither Legislature rior municipality1 can deprive, him without compensation.” (City of Buffalo v. Pratt, 131 N. Y. 293.)

The moment it is conceded that for such deprivation of the street as existing, the property owner would be entitled to have proceedings instituted to ascertain the compensation to which he was entitled,"ikseems clear that he is in a.position to ask the aid of the court to compel the corporation counsel to perform the duty imposed upon him by law of instituting the necessary proceedings to obtain the necessary appointment of the commissioners. It is no answer that the strip taken is harrow and the damage inflicted small. • The question of the amount of damage and the compensation therefor is to be determined in the first instance by the commissioners to be appointed and not by the court. All that is necessary to establish to the satisfaction o.f the court is that a -street or a part thereof has been discontinued or closed in the, manner provided -by law by the local authorities; that the property abuts upon such street so discontinued or closed ; that the ownqr has, within the time limited, presented to the comptroller a written statement or claim for compensation and a request that a proceeding be instituted by the appointment of commissioners for the ascertainment and determination thereof, and that .such proceedings have not been instituted. The petition in the matter at bar sets forth all those facts.

-It follows, therefore, that the order appealed.from should be reversed, with ten dollars costs and disbursements, and that the motion should be granted, with ten dollars costs.

Patterson, P. J., .-Ingraham, McLaughlin and Lambert, JJ., concurred.

Order reversed, • with ten dollars costs and disbursements, and motion granted,- with ten dollars costs.  