
    Matter of the City of New York (Piers old Nos. 19 and 20).
    (Supreme Court, New York Special Term,
    May, 1906.)
    Eminent domain — Measure of compensation — Appraisal of pier shedded under revocable license.
    Where, in a proceeding instituted by the city of New York to acquire title to a pier, upon which the owners ha.d erected a shed under a revocable permission from the municipality, with full knowledge of the plan of the city to acquire the entire dock system within an area including the pier in question, the commissioners valued the property as a shedded pier and not an open pier; held, that their report should not be confirmed against the opposition of the city, for the taking of the property by the city operated as a revocation of the permission to maintain the shed and as to this the owner was not entitled to compensation and the property should, therefore, have been valued as an unshedded pier.
    Proceeding by the city of Mew York to acquire title to parts of certain piers.
    Harris & Towne, for claimants.
    John J. Delany, corporation counsel, for city.
   Blanchard, J.

This proceeding was instituted by the city of Mew York to acquire title to parts of certain piers. In valuing the westerly half of pier old Mb. 20 the commission assessed the property as a shedded pier and not an open pier. The city opposes the motion to confirm the commissioners’ report upon the ground that the method of valuation was erroneous. In 1873 the hoard of docks leased the easterly half of pier old Ho. 20, which half then belonged to the city, to CL H. Mallory & Co. for five years, and permitted said lessees to erect a shed on the pier, “ provided they obtain and file in the department the written consents of the owners of the west- half of the property.” These consents having been obtained and filed, the lessees erected a shed upon the westerly half of the pier. In People, v. Mallory, 46 How. Pr. 281, .this permission was held void. By Laws of 1875, chapter 249, section-1, however, all sheds “ heretofore erected ” were declared to be “ lawful structures subject to the terms and conditions of the license or permit authorizing the same.” The shed erected in 1873, therefore, became a lawful structure; and, since the “ permit authorizing the same” contained .no provision for revocation, the permission to maintain said shed would seem, under the authority of Matter of the City of New York, Pier No. 15, 95 App. Div. 501, to have been irrevocable. The language of the statute, however, limited the permission thus given to the maintenance of the shed “heretofore erected.” Accordingly, upon the destruction of the shed by fire in 1900 it became necessary to procure a new permission for the erection of a new shed. In 1900 “a temporary-permit” was granted to C. H. Mallory & Co. to shed a portion of pier 20, the shed to remain “ only during the pleasure of the board.” Acting under this permit, which was expressly revocable in terms, and acting with full knowledge of the plan of the city to acquire the entire dock system in the area including the claimant’s property and to end all private ownership along said water front (Laws of 1870, chap. 137; Laws of 1871, chap. 574; Greater N. Y. Charter, '§§ 819, 822), C. H. Mallory & Co. erected the present shed. Although, at the time the city acquired title to the property, the'right of revocation contained in this permission had not been exercised, it nevertheless was a power which the city possessed. By bringing the present proceeding the city may well be regarded as having revoked the permission. Kingsland v. Mayor, 110 N. Y. 569. As was said by Finch, J., giving the opinion of the court in the case last cited (583) : “ When the city acted the inevitable result was two-fold. It operated to destroy the wharf right which the plaintiff owned, and to that extent took from him his property. It operated also as a revocation of the license or privilege given. The value of the one the city was bound to pay; the value of the other it was not bound to pay. It could, as it did, revoke the license by removing or directing the removal of the platform and shed without the least responsibility for the resulting injury. That the taking and revocation happened at the same time cannot alter the inherent character of either.” The value of the revocable shedding permit has been improperly included by the commissioners in their estimate of the value of the property taken by the city. The westerly half of pier old Ho. 20 should be valued as an unshedded pier; and, accordingly, the objection to the report must be sustained and the matter referred back to the commissioners for revision and correction.

Ordered accordingly.  