
    In re CLOSING ATTORNEY STREET IN CITY OF NEW YORK. HOYT v. CITY OF NEW YORK.
    (No. 5801.)
    (Supreme Court, Appellate Division, First Department.
    May 15, 1914.)
    1. Municipal Corporations (§ 386)—Discontinuance op Streets—Damages —Persons Entitled.
    The owner of property abutting on a street, which was closed at one end of the block in which the property was situated, but not in front of the property itself, is entitled to recover damages resulting therefrom under the Street Closing Act (Laws 1895, c. 1006).
    [Ed. Note.—For other cases, see Municipal Corporations, Cent.. Dig. • § 929; Dec. Dig. § 386.*]
    2. Municipal Corporations (§ 386*)—Discontinuance op Streets—Damages —Defenses.
    The fact that the city acquired, for bridge purposes, the fee to a strip of land running alongside the property and extending to other streets on both sides, and had paved such strip and opened it for travel, does not affect the property owner’s right to damages for the closing of the street, since the city could at any time close such strip without compensation to the property owner, who had no easement therein and could acquire none.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent Dig. § 929; Dec. Dig. § 386.*]
    Appeal from Special Term, New York County.
    Motion by Gertrude L,- Hoyt in proceedings for the discontinuing of Attorney Street in the City of New York, against the City of New Yo'rk for peremptory mandamus. Motion denied, and petitioner appeals,
    Reversed, and motion granted.
    Argued before-INGRAHAM, P. J., and CLARKE, SCOTT, DOW-LING, and HOTCHKISS, jj.; _ ' ■
    
      Truman H. & George E. Baldwin, of New York City (George E. Baldwin, of New York City, of counsel), for appellant.
    Frank L. Polk, Corp. Counsel (John J. Kearney, of New York City, of counsel, and Joel J. Squier, of New York City, on the brief), for respondent.
    
      
      For other cases see same topic &'§ numbbb in Dec. & Am, Digs. 1907 to date, & Rep’r-lndexes
    
   CLARKE, J.

The premises of the petitioner are situated, on the east side of Attorney street between Broome and Delancey streets. Attorney street between Broome and Delancey has been for upwards of a century a lawful public highway extending from Division street to Houston street, actually open and in public use. For some time after the construction of the Delancey, street bridge, Attorney street continued, unobstructed, under the bridge, until the city closed, discontinued, and abandoned, by proceedings duly instituted for that purpose, that part of the street in the block between Broome and Delancey, where it so passed beneath the bridge. Said closing took effect on July 16, 1908. The resolution closed and discontinued a portion of Attorney street beginning at a point distant 61' southerly from the center line of the bridge and thence northerly to a point distant 122'. The city thereupon erected a retaining wall across the entire width of the street. The petitioner alleges-that access to and from her property from the north and the easements of access, light, and air, formerly possessed by her therein, became extinguished; and the street in front of her premises became a cul-de-sac, with access from and to the south only, and thereby the value of her said property became greatly depreciated to her damage of at least $25,000; that she duly filed with the Comptroller, under the provisions of section 5 of chapter 1006 of the Laws of 1895, a claim for damages and a demand that proceedings be instituted for the ascertainment and determination thereof; that the Comptroller refused to make an adjustment or payment or to accede to said demand, and the corporation counsel has failed to make application for the appointment of commissioners to ascertain and determine the compensation to which she is entitled; wherefore she prays for the issuance of a peremptory writ of mandamus directing him to so apply.

The city avers that between the northerly line of the premises of petitioner and the southerly line of the bridge structure there is a street 20' in width extending through the block from Attorney street to Ridge street; that said 20' street extended from Clinton street, which is one block west of Attorney street along the bridge structure several blocks eastwardly; that this 20' street was paved and the sidewalks laid and that the work was accepted by the department of highways on December 1, 1908; that the said 20' street is in general use by the public for pedestrians and vehicular traffic; that the distance along ■ said street from Attorney street to Ridge street is 200' and from Attorney street to Clinton street also 200 feet; that the premises of the petitioner are improved with two five-story brick tenements and a two-story- brick tenement in the rear, access to the latter improvement being obtained from the 20-foot street; that from the records of the board of assessors it appears, that petitioner applied to the said board pursuant to the provisions of chapter 460 of the Laws of 1904, for an award for damages alleged to have been sustained by her premises by reason of the change of grade in Delancey street, incident to the construction of the East' River or Williamsburgh bridge, and said board awarded her $2,250 for said change in grade of Delancey street.

Petitioner’s replying affidavit sets up that the 20' street referred to is known by the bridge department as a “south clearance roadway,” and was acquired by the city of New York pursuant to chapter 21 of the Greater New York Charter, in a proceeding relative to acquiring title to lands as a site for the construction and permanent location of a bridge over the East River, and that upon the confirmation of the report in said proceedings the city became seised in fee simple absolute of the lands included in said report, the same to be held, appropriated, converted, and used to and for the purposes for which the said proceedings were instituted; that this “south clearance roadway” therefore was acquired in fee by the city for bridge purposes and is under the care, management, and control of the commissioner of bridges; that said roadway is maintained only at the sufferance of said commissioner of bridges, and petitioner has no easements of light, air, access therein, nor can she require the same to be maintained as a street. She admits the award for the change of grade of Attorney street, but alleges that said award was made for change of grade only and not for the closing of Attorney street.

In denying her application the learned Special Term said:

“In my opinion chapter 1006 of the Laws of 1895 contemplated a remedy to the abutting owner only where actionable damage was sustained. The petitioner’s property did not abut upon the part of the street closed, and right of access by way of Broome street has not been impaired. Therefore any damage suffered was damnum absque injuria. In the absence of controlling authority in this state, I think the considerations of public policy which support the doctrine applied in Massachusetts should be adopted in the construction of the present statute”—citing cases.

While no portion of the petitioner’s property abuts on the portion of Attorney street which has been closed, yet the street has not been kept open upon the whole block upon which her property was situated. It is true there has been constructed immediately adjacent to her property a 20' street, giving her a corner lot and access to her rear tenements from said new street; but I think it clear that she has no absolute rights to the maintenance and continuance of this street. In street opening proceedings, section 990 of the Greater New York Charter (Laws 1901, c. 466) provides:

“The title acquired by the city of New York to lands and premises required for a street, shall be in trust, that the same be appropriated and kept open for, or as part of a public street, forever, in like manner as the other streets in the city are and of right ought to be.”

But this property was condemned by the city, and it acquired title in fee, for bridge purposes. It is within the jurisdiction of the department of bridges. In its discretion, and to accommodate the necessities of the city, it might be at any time appropriated and converted to bridge purposes in such a manner as to deprive her of any easements of light, air, or access therein without a further right of .compensation to her. Such easements .as she now has therefore therein she holds by sufferance and not by right.

' In People ex rel. Winthrop v. Delany, 120 App. Div. 801, 105 N. Y. Supp. 746, affirmed 192 N. Y. 533, 84 N. E. 1118, the petitioner .owned property on Depew place opposite to a strip on said street 35' in length and 12' in depth, which had been closed in proper proceedings incident to the construction of the new terminal and the changing and enlargement of the Grand Central Station. Upon an application for a peremptory writ of mandamus directing the corporation counsel to institute proceedings for the appointment of commissioners to ascertain damage done to said property, this court said:

“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. * * * 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, it seems, 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 narrow 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.”

In Reis v. City of New York, 188 N. Y. 58, 80 N. E. 573, where the city had closed a portion of Hawthorne street in the city of Brooklyn and erected a hospital thereon, and a property owner instituted an action in equity to restrain the continuance, maintenance, and further erection of such obstruction, the court said:

“It is to be noted that none of the property of the plaintiff abuts upon that part of Hawthorne street which it is proposed to close. * * * It is not intended to close any portion of Hawthorne street upon which any of ¡her property abuts or any portion thereof which is opposite a block in which she owns property. * * * In Matter of Twenty-Ninth Street, 1 Hill, 189, the grantor had sold lots and bounded the purchasers by Twenty-Ninth street as it was laid down on the city map of New York, ‘He could have intended nothing less by his deeds,’ said Bronson, J., ‘than a declaration that Twenty-Ninth street was, and, so far as he was concerned, should remain a public highway, I do not say that this dedication will extend to all his lands in the site of the street, however remote' from the lots sold; but it will, I think, extend .to all his lands in the same block, or, in other words, to the next cross street or avenue on each side of the lots sold. The parties must have contemplated an outlet both ways.’ I think the private easement of the plaintiff in the present case extended no further. She was entitled, in the first place," to have that part of Hawthorne street kept open upon which her" own property abutted: * * *■ Inasmuch as Hawthorne street remains wholly open in front of those blocks upon which plaintiff’s property is situated and opens into cross,-streets at both, ends of each block, * * * I am of the opinion that ■the"plaintiff has not been deprived' of any private easement. * ! * '

" It would seem that property- situated on a-block upon an ancient •-.public street is entitled to have.access from each end" of that„block.' As the" street "has not only.been discontinued' for a portion-of the very ■block 'upon-which'.the'petitioners [property- is' located; but:has, . been permanently and physically obstructed by the wall erected a few" feet to the north of her property and in said block, I am of the opinion-that she has presented a case within the provisions of the Street Closing Act, supra, and that she is entitled to present her claim for damagés to commissioners to be appointed as provided by said act. This court, of course, does not at the present time pass upon the extent or the existence of any actual damage. The question is: Has she established a legal right to have her claim litigated before a lawful tribunal ? We think she has, and that for the reasons stated in People ex rel. Winthrop v. Delany, supra, the writ prayed for should have been allowed.

It follows therefore that the order appealed from should be reversed, with $10 costs and disbursements to the appellant,' and the motion granted, with $50 costs. All concur.  