
    In the Matter of the Application of the City of New York, Relative to Acquiring Title, etc., for the Opening of Newton Avenue, from West Two Hundred and Fifty-third Street to West Two Hundred and Sixtieth Street, etc. In the Matter of the Application of Augustus Van Cortlandt, for Damages by Reason of the Closing of a Public Highway Known as the Old Albany Post Road. Augustus Van Cortlandt, Individually and as Executor, etc., of Augustus Van Cortlandt, Deceased, Respondent, Appellant; The City of New York, Appellant, Respondent.
    First Department,
    June 3, 1916.
    Municipal corporation — street opening, city of New York — opening of Newton avenue and closing portion of Albany Post road — right of abutting owners to award—date of filing claim. — delay in physically closing road to be discontinued—statute constitutional — change in grade of existing road.
    On the filing of the final maps and profiles by the commissioner of street improvements in the city of New York, pursuant to chapter 545 of the Laws of 1890, as amended, relating to the opening of Newton avenue in the twenty-third and twenty-fourth wards of said city, and the closing of a portion of the Albany Post road, the six-year Statute of Limitations on the right of an abutting owner to an award for the extinguishment of easements did not begin to run, where, as a matter of fact, the portion of the Post road to be discontinued remained open and in physical use. A filing of the claim within six years after the Post road was physically closed is timely and entitles the claimant to an award.
    Although the figures on the map relating to a portion of Broadway which was to be continued showed a change of grade, the map itself did not effect such change when the existing grade was actually continued for a period of years, and hence does not show that the existing Broadway was discontinued and a new Broadway provided for by the proceeding. The said statute authorizing the street improvement is not unconstitutional, even though the limitation contained therein as regards the time of filing claims be held inoperative in those eases where discontinued streets are not actually physically closed.
    Pag-e, J., dissented, with opinion.
    Cross-appeals by the petitioner, Augustus Van Cortlandt, individually and as executor, and 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 Bronx on the 10th day of September, 1915.
    The order directed that the commissioners of estimate in a pending proceeding to open Newton avenue ascertain and determine the compensation to be made to Augustus Van Cortlandt, individually and as executor, for the extinguishment of easements incident to the closing of Albany Post road, by the filing of section 25 of the final maps and profiles of the twenty-third and twenty-fourth wards of the city of New York on the 2d day of November, 1895, by the commissioner of street improvements, pursuant to the provisions of chapter 545 of the Laws of 1890 and the acts amendatory thereof. The city of New York appeals from the whole of said order. Augustus Van Cortlandt, individually and as executor, appeals from so much of said order as directs that his damages are to be ascertained and determined as of November 2, 1895.
    
      Philip B. La Roche, Jr., for Augustus Van Cortlandt.
    
      Joel J. Bquier [ John J. Kearney with him on the brief], for The City of New York.
   Laughlin, J.:

The application to the court made on the 12th day of July, 1915, which resulted in the order from which both parties appeal, was made by Van Cortlandt pursuant to the provisions of section 14 of chapter 1006 of the Laws of 1895.

On the 2d day of November, 1895, the commissioner of street improvements of the twenty-third and twenty-fourth wards of the city of New York filed final maps and profiles of those wards pursuant to the provisions of chapter 545 of the Laws of 1890, as amended, and his action was ratified by chapter 712 of the Laws of 1896. Prior to that time a street, of late years known as Broadway, ran northerly from Kingsbridge through Yonkers, with a branch then known as Albany Post road diverging westerly and southerly from a point 260.71 feet northerly of the present northerly line of West Two Hundred and Fifty-fourth street, joining Broadway again south of West Two Hundred and Forty-second street. Section 25 of said final maps and profiles shows said Albany Post road as discontinued from the northerly line of West Two Hundred and Fifty-third street to its junction with Broadway to the north. The easements, compensation for which is sought in this proceeding, were those in that part of Albany Post road so shown as discontinued appurtenant to the triangular tract of land lying between the northerly junction of Albany Post road and Broadway, and the northerly line of West Two Hundred and Fifty third street as shown on said maps and profiles, and between Albany Post road and Broadway.

It is recited in the order that the court found as matter of law that the Albany Post road between the points here involved became discontinued and closed and all easements therein both public and private extinguished on November 2, 1895, when said map was filed.

Van Cortlandt, individually and as executor, contends and the city concedes that the effect of the order is to require the commissioners of estimate to ascertain and determine the compensation as of the date of the filing of said final maps and profiles; but Van Cortlandt claims that this is erroneous, and he makes this claim on the ground that Albany Post road was not legally discontinued until the actual grading and improvement of Broadway adjacent to the premises on November 26, 1910; and on that theory he claims that the compensation should be ascertained and determined as of that date. On other appeals relating to the extinguishment of easements in this part of Albany Post road, in which the property owners are represented by the same counsel who represents Van Cortlandt on this appeal (Matter of City of New York [Newton Ave.], In re Harris, 173 App. Div. 15), other contentions are made with respect to the date on which the easements are to be deemed to have been extinguished, and in the points for Van Cortlandt on this appeal it is suggested that if another date is fixed on the other appeals that must be controlling here as well.

The city makes two contentions, as follows: First, that the easements appurtenant to the premises in question in Albany Post road have not yet been taken, and that the provisions of section 2 of chapter 1006 of the Laws of 1895, in so far as they provide that the mere filing of the map showing the discontinuance of a street, or the physical opening of a street shown thereon, operates as an appropriation of the private easements in the discontinued street, are unconstitutional; and that, therefore, Albany Post road was not legally closed by the mere filing of the map, even though Broadway adjacent to the premises was open and in use as a public street, and that no damages can be awarded for such easements; and, second, that if Albany Post road was legally discontinued and closed by the filing of the map and the easements extinguished, the right to compensation for the easements is barred by the failure to file a claim therefor within six years after the filing- of said map, as provided in section 5 of said act.

Said section 25 of the final maps and profiles showed Broadway as bounding said triangular tract of land on the east. It is contended in behalf of Van Cortlandt that Broadway as shown on said map does not coincide either with respect to its lines or grade with the public street then and theretofore in use as a public highway known as Broadway; but it appears by the affidavit of the engineer in charge of the topographical bureau in the office of the president of the borough of The Bronx that the lines of Broadway as shown on said map do coincide with those of the existing street by that name. The contention of Van Cortlandt that the lines of Broadway as continued on the map are not the same as the lines of the then existing street is now abandoned; but he still contends that the elevation of the continued street is not the same as the elevation of the then existing street. This contention is predicated upon figures shown on said map indicating the elevation of the street above high water which refer “ to the bench mark at the eastern abutment of the northern approach to the Third Avenue Bridge across the Harlem River,” and upon an affidavit with respect to the improvement of Broadway made in the year 1909, which tends to show that the grade of the street was elevated about fifteen feet in some places. The figures on said map to which reference has been made did not in and of themselves effect a change of the grade of the then existing street, and the fact that the grade was subsequently changed is immaterial. It is uncontroverted that the street was open and in use as a public street at the time the map was filed, and had been so open and in use since the year 1866, but part of the time under different names. The appellant Van Oortlandt relies upon Matter of City of New York (Juniper Avenue) (162 App. Div. 291) in support of his contention that the existing street bounding the block must be shown on the map by the same dimensions and the same grade in order to constitute it a street “ opened ” within the contemplation of section 2 of said act; but in that case the street shown on the map was much wider than the existing street, and to the extent that it was wider the land had not been acquired and was not in use as a public street, and the grade of the street as shown on the map was several feet higher than the grade of the former street, part of which was continued. The majority opinion holding that the fact that part of the old street was embraced within the lines of the new street was insufficient to show that the new street was open, referred both to the difference in width and the change of grade of the street. We are of opinion, however, that a contemplated change • of grade is immaterial. The material facts are that the map shows the continuance of the existing street, and that it was open and in use for its entire width at the time the map was filed. It would be unreasonable to hold as is contended, in effect, in behalf of Van Oortlandt, that since the map indicates a contemplated change of grade for Broadway, that shows that the existing Broadway was discontinued and a new Broadway provided for. The contention, therefore, that Broadway as continued or shown on the map was not an open street until the grade thereof was changed by the improvement completed on November 26,1910 is untenable.

The contention of the city that if the statute be construed as extinguishing private easements by the mere filing of the map, if there remains bounding the block an open street, it is unconstitutional, is based upon the decision of the Court of Appeals in Matter of City of New York [Grand Boulevard] (212 N. Y. 538), in which it was held that the limitation of six years for filing claims was unconstitutional, in so far at least as it applies to cases in which the discontinued street has not been physically closed, for the reason that it contains no provision for notice to the owners of the easements. Early in the application of this statute the city claimed that it was unconstitutional, but this court and the Court of Appeals held it to be constitutional (Matter of Mayor, 28 App. Div. 143; affd., 157 N. Y. 409), and this court and the Court of Appeals have often since given force and effect to the provisions of the statute extinguishing private easements when an open street in public use remained bounding the block at the time of the filing of the map, or when a street bounding the block was thereafter opened. (Matter of Mayor, 28 App. Div. 143; affd., 157 N. Y. 409; Matter of Mayor [Vanderbilt Ave.], 95 App. Div. 533; 119 id. 882; affd., 189 N. Y. 551; Swain v. Schonleben, 130 App. Div. 521; affd., 198 N. Y. 622; Matter of Mayor, etc. [Walton Ave., Petition of Brass], 131 App. Div. 696; affd., 197 N. Y. 518; Matter of City of New York [Walton Ave.], 145 App. Div. 855; affd., 204 N. Y. 670; Matter of Mayor, etc. [Walton Ave., Petition of Woolley], 156 App. Div. 775; affd., 209 N. Y. 571.) Moreover, if the statute were unconstitutional, it is manifest that easements could not be extinguished by proceedings thereunder; and yet after the doubt was expressed with respect to the constitutionality of the statute in the opinion of the Court of Appeals in Matter of Grand Boulevard {supra) that court with that opinion drawn to its attention took occasion to consider the scope and effect of said chapter 1006 of the Laws of 1895, for the benefit, as expressed in the opinion, of property owners, the municipal authorities and the legal profession, as if it were a valid and subsisting statute, without questioning its constitutionality, and held, reversing the decision of this court on the point, that private easements may lawfully be extinguished by proceedings under the statute. (Barber v. Woolf, 167 App. Div. 627; affd., 216 N. T. 7.) We are of opinion that the statute may be sustained notwithstanding the fact that the limitation therein prescribed with respect to the time of filing claims must be deemed inoperative, in those cases where the discontinued street is not actually closed, until such closing, as was held in Matter of Grand Boulevard (supra); and since the doubt with respect to its constitutionality was expressed by the Court of Appeals in that case, this court has, in effect, so held. (Astor v. Thwaites, 170 App. Div. 624.) Van Oortlandt’s claim was not filed until April 1, 1915. The city contends that if the statute effected an extinguishment of the easements at the time the map was filed the claim is barred by the six-year limitation prescribed in section 5 of the act. It appears, however, that the discontinued Albany Post road remained open and in use and unobstructed as a public street until August 1, 1914, upon which date it was obstructed at the intersection of West Two Hundred and Fifty-fourth street therewith by the construction of West Two Hundred and Fifty-fourth street across it at an elevation of about five feet. The claim, therefore, was presented within six years after the physical closing of the discontinued street, and under the decision of the Court of Appeals in Matter of Grand Boulevard (supra) it was timely filed.

It follows that the order should be affirmed.

Clarke, P. J., Dowling and Davis, JJ., concurred; Page, J., dissented.

Page, J. (dissenting):

The facts and contentions of the parties are fully stated in the opinion of Mr. Justice Laughlin. I cannot concur in the result reached by him.

The title of the bed of the Albany Post road at the place under consideration was vested in fee in the State of New York, subject to the easement of the public to travel thereupon, and to the easements of access, light and air in the abutting property owners. In this proceeding we are only concerned with the easements of the abutting owner. The Albany Post road was kept open and in general use as a highway until August 1, 1914, when by reason of the construction of West Two Hundred and Fifty-fourth street across it at an elevation of five feet it was physically closed. Coincident with this closing, Newton avenue, a new street extending from Two Hundred and Fifty-third street and the Albany Post road, was opened to public use and travel. The Court of Appeals has held, “Under the Laws of 1895 (Chap. 1006) the public easements in the street and the easements of light, air and access are extinguished in a discontinued road or street when the new street is opened,” and they construed the word “opened,” not in the technical meaning as referring to the time when the city became vested with the title to the land upon which the street or avenue is to run, but in its popular sense as physically opened and capable, of public use. (Johnson & Co. v. Cox, 196 N. Y. 110, 118.)

By the terms of the act of 1895 (Chap. 1006), therefore, the easement of the abutting property owner was not appropriated until the Albany Post road was physically obstructed and Newton avenue opened, and compensation should be awarded in this proceeding as of that date, namely, August 1, 1914, and the order should be so modified and as modified affirmed.

We are not concerned with the question of the extinguishment of private easements arising from grants, nor in the easements in streets that have not been accepted by the public authorities, which has been the occasion of judicial differences in those cases set forth and discussed in Mr. Justice Laughlin’s opinion. Nor can any question of the constitutionality of the act of 1895 arise in this case, for the reason that the act as construed by the Court of Appeals, in so far as it relates to the cases of the character of the instant case, provides for an open and notorious appropriation of the right of access and the time limitation has not been exceeded.

Order affirmed.  