
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, etc., for the Purpose of Opening Walton Avenue, etc., from East One Hundred and Sixty-seventh Street to Tremont Avenue, etc., in the Twenty-third and Twenty-fourth Wards of the City of New York, on Petition of Philip Woolley, Respondent. The City of New York, Appellant.
    First Department,
    May 29, 1913.
    Municipal corporations—street closing, city of New York — limitation of time to file claim for damages.
    Although chapter 1006 of the Laws of 1895, regulating street closing proceedings in the city of New York, provides that the claim of an abutting owner for damages must be presented within six years from the filing of the map indicating the street to be discontinued, such limitation applies only where the street was not in actual use when the map was filed. And the limitation does not begin to run from the date of the filing of the map where a street to be closed continues to be actually used.
    Nevertheless, although a street to be discontinued remained in actual use for a time, an abutting owner must file his claim for damages within six years from the time it was actually closed, for at that time his claim accrued.
    Appeal by the City of New York 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 17th day of March, 1913, which resettled a prior order granting a motion by the petitioner, Philip Woolley, for a reference to the commissioners of estimate and assessment in this proceeding of his claim for damages arising from the discontinuance of an established street.
    
      James Regan Fitz Gerald, for the appellant.
    
      Benjamin Trapnell, for the respondent.
   Scott, J.:

The petitioner is the owner of property abutting upon Hawk-stone street (also known as Sixth avenue) in the borough of the Bronx, city of New York. He and his grantors have owned said property since prior to July 5, 1905, on which date said Hawkstone street became legally closed and discontinued as a public street under the so-called Street Closing Act (Laws of 1895, chap. 1006) by the physical opening of One Hundred and Seventy-second street, one of the streets bounding the square or plot within which petitioner’s property is located as shown upon the permanent plan filed on November 2, 1895, upon which Hawkstone street is also shown as a street to be closed and discontinued.

We have already decided in a case arising out of the discontinuance of this same street that whatever damage resulted to any abutting owner in consequence of such discontinuance accrued on the date on which the said street was legally discontinued, to wit, July 5, 1905. (Matter of City of New York [Dimelow Claim], 145 App. Div. 855; affd., 204 N. Y. 670; Matter of Mayor, etc., 166 id. 495.) The plaintiff claims damages under án assignment from those who owned the property on July 5, 1905.

By the Street Closing Act of 1895 provision is made for the ascertainment of the damage sustained by the owner of land abutting upon a discontinued street either upon application of the corporation counsel in behalf of the city, or of the aggrieved property owner. With respect to the latter the act undertakes to establish a limitation of time within which a claim for such damages must be presented. The language is: “Provided, however, that within six years after the filing of such map [that is, a map or plan indicating that the street is to be discontinued] 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, * * * or be forever barred from claiming compensation for such closing or discontinuance.” (§5.)

It has been held that this limitation applies literally to the case of the owner of land abutting upon a projected street, road or avenue, not actually in usé when the permanent map or plan was filed,, and which, therefore, became ipso facto legally discontinued upon the filing of the map, for it was then that the damages, if any, accrued. ■ (Matter of Richard Street, 138 App. Div. 821; Matter of Mayor, etc. [Grote Street], 139 id. 69.)

In the Dimelow Case {supra), as in the present, the street upon which the claimant’s land abutted was in actual use when the permanent plan of 1895 was adopted, and was not, under the established construction, legally discontinued until July, 1905, ten years after the filing of the permanent plan. Obviously the limitation of six years after the filing of the plan was inapplicable to such a case, and it was so held. In that case the notice of claim was filed within six years after Hawkstone street had. been legally discontinued by the opening of One Hundred and Seventy-second street, but, of course, much more than six years after the filing of the permanent plan. It was held that under these circumstances the limitation contained in section 5 of the Street Closing Act could not be legally applied, and that since no damage accrued until the street , was legally discontinued, the limitation of time within which to file a claim could not begin to run until the legal discontinuance had been effected. It was accordingly held that the claim in that case had been filed in time.

We now have presented the question whether, under the circumstances of this case there is any limitation of time within which a claim may be filed, and, if so, what that limitation is. In the case at bar, the claim was not filed until May -1-, 1912, more than six years after the right to compensation accrued, and the claim of the corporation counsel is that this is too late, and that no effective claim can be filed after the expiration of six years from the date of the legal closing of Hawk-stone street, at which date, as it is conceded, the damage, if any, accrued. This question was expressly left open in the discussion of the Dimelow case.

There can be no doubt that it was the intention of the Legislature to place a reasonable limit upon the time within which claims for damages arising from the discontinuance of a street should be presented. As to streets not in use when the general plan was filed, and which were automatically discontinued by the fact of filing, the provision of the statute is precise and easily applied. As to them it is reasonable and proper that the limitation should begin to run from the date of filing, as that is also the. date on which the damage accrues. It has already been found necessary, however, to ignore the date of filing as the starting point of the limitation, , in cases-like the present where a damage accrues some time subsequent to the date of fifing, and it is argued that, being obliged to ignore that fixed date, there is no date left at which any limitation of time can begin to run, and consequently that there is no limitation upon the filing of such claims for damage. We do not think that the statute should be subjected to so narrow a construction. The right to file a claim at all is given only to the “ owner or owners interested and affected by such discontinuance,” and until the discontinuance has been legally effected there can be no owner or owners interested or affected by it. It is at that moment, therefore, that the limitation of time to file claims must commence, if there be any hmitation. The provision that the claim must be filed within six years “ after the filing of such map,” was doubtless inserted in the belief, which in most cases is well founded, that the filing of the map would -be coincident with the discontinuance of the omitted street, and, therefore, coincident with the inception of the right to recover damages, the main and dominant purpose being that a property owner aggrieved by the discontinuance of a street should have six years and no more after he had been damaged to' file a claim therefor. As has been said above, we found it necessary in justice to certain property owners to ignore the words “after the filing- of such- map,” and to recognize the validity of a claim filed much more than six years after that time. The result of omitting or ignoring these words, which can have no application to a case wherein the legal discontinuance does not take place until ten years after the filing of the map, would leave the section to read: “ Provided, however, that within six years any owner or owners interested and affected by such discontinuance and closing may file a claim or be forever barred from claiming compensation.” This reading of the statute will, in our opinion, exactly represent what was clearly the intention of the Legislature that each owner affected by the discontinuance should have six years and no more, after his damage accrued, within which to file a claim for compensation; To so read the statute will do no more violence to its language than is necessary to apply its obvious intent to the circumstances of the particular case with which we have to deal.

It follows that the petitioner’s claim was filed too late and that the motion to refer it to the commissioners of estimate and assessment should have been denied.

The order appealed from should he reversed, with ten dollars cost and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

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