
    Bertha Schafhaus, Plaintiff, v. The City of New York, Defendant.
    
      Supervisors — the power to rescind a resolution closing a street requires the same authority as the resolution sought to be rescinded.
    
    A board, of supervisors, which, acting under chapter 389 of the Laws of 1893, has changed the line of a street whereby a portion thereof has been closed, has.. authority to rescind such action only on the presentation of the same petition of property owners, or, in lieu thereof, of the certificate of certain town officers that theimprovement is, in their judgment, proper and necessary for the public interest, which is required to authorize the opening of the street.
    
      .Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. ■
    
      Arthur Hurst, for the.plaintiff.
    
      Almet F. Jenks for the defendant.
   Willard Bartlett, J.:

The object of this proceeding is to establish the plaintiff’s righi? to the possession of certain premises which she occupies for purposes of floriculture in .the former town of Gravesend, .now the thirty-first ward of the borough of Brooklyn, There is no- doubt; that these premises .are • situated in Neptune avenue, as that street was duly opened by proceedings taken in 1885 and: 1886; On December 12, 1892, however, the board of Supervisors of. Kings': county adopted a resolution changing the line of Neptune avenue,; which had the practical effect of moving that avenue forty feetj to .the south of its. original location, between West Sixth street: and West Fifteenth street. This action closed the northerly half of: Neptune avenue as originally laid out between the streets mentioned,1 and it is within. the portion thus closed that, the greenhouses and: other structures of , the-plaintiff are located. j

The contention of the defendant is, that this resolution closing' the north .half of a part of Neptune avenue was rendered ineffectual by the subsequent action of the board of supervisors on May; 1, 1893, before the plaintiff acquired title to the property in con-! troVersy, in adopting a resolution which, in terms, rescinded that; adopted on December 12, 1892 ; and hence that the portion of the! avenue .occupied by the plaintiff’s hothouses and appurtenances is to< be regarded as though no proceedings had ever been taken to close: it, and not only as having been a "public street when the plaintiff purchased her property, but ,as being, a public street to-day.

The difficulty with this view is that the proceedings to close it: were effectual in law, while the proceedings to reopen it were not.!

The authority .of the board of supervisors to act in the matter! was derived from chapter 289 of the Laws of 1892. The "board was by that act empowered to authorize the laying out, opening,, grading, construction, closing and change of line of such a street as Neptune avenue, or any part thereof; but its power in these respects could be exercised only on the petition of property owners of more than half the frontage on the street or avenue, or, in lieu thereof, upon the certificate of certain town officers that the improvement was, in their judgment, proper and necessary for the public interest.

When the board of supervisors undertook to close the part of Yeptune . avenue in question, by the resolution of December 1'2, 1892, the various preliminary requirements of the statute in respect to this certificate were all complied with; and so,, as I have said, the closing of that portion of the street was legally- accomplished. When, however, we come to the rescinding resolution we find that none of the conditions were observed which the act prescribes as essential to the exercise of authority on the part of the board of supervisors in the opening of a street. There was no consent of the property owners, nór was¡ there any certificate- of the town officers. But one or the other of these was as necessary to give validity to the rescinding resolution as it was to afford a legal basis for-the resolution closing the north half of "the avenue between West Sixth street and West Fifteenth street. To rescind a resolution closing a street is virtually to adopt a resolution opening it; and to make the rescission effective the same formalities must be observed as would be necessary to open a street in the same locality in the first instance. This view is in nowise in conflict- with the proposition that the power to enact an ordinance or resolution ordinarily implies the power to-repeal or rescind it. The board of supervisors did have the power-to rescind the resolution of December 12, 1892, but only by complying with the conditions which were a statutory prerequisite to the adoption of the resolution.

Upon the agreed statement of facts the city of Yew York has no easement of other right in the premises occupied by the plaintiff, and she is entitled to an injunction restraining the municipal authorities "from interfering in any manner with her possession.

All concurred.

judgment directed for plaintiff on agreed statement of facts.  