131 N.Y.S. 275 | N.Y. App. Div. | 1911
The crucial question in this case is as to the nature and extent of the duty which defendant owed plaintiff with regard to the property upon which the latter was injured. It was a vacant plot of ground upon Eastern parkway, near Underhill avenue. Originally it was acquired by the former city of Brooklyn for park purposes (Laws of 1860, chap. 488, as amd. by Laws of 1861, chap. 340). By a subsequent act (Laws of 1870, chap. 373, as amd. by Laws of 1873, chap. 795) it was provided that the Brooklyn park commissioners should be authorized to contract and sell at public auction, at such times and on such terms and conditions as they should deem expedient, a portion of said lands lying easterly of Elatbush avenue and including the premises in question. A large portion of such land has been sold and conveyed, but a part thereof, including the lot upon which plaintiff was injured, still belongs to the city. The effect of this was to relieve the city from any trust ' obligation to maintain this parcel of land as a public park and to empower it to sell the same. (Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; City of Brooklyn v. Copeland, 106 id. 496.) This was within the legislative power. and discretion. (Id.) After the passage of this act the liability of the city with respect to this land was the same as that of a private individual owning similar land similarly used. Appellant contends that .the trust imposed upon the city to hold these lands for a public use was not terminated until the land was actually sold and conveyed. This seems to us too narrow and literal a
The judgment appealed from should be affirmed, without costs.
Present — Jenics, P. J., ITirschberg, Burr, Thomas and Carr, JJ.
Judgment modified by striking out the words “Upon the merits ” and ■ as so modified judgment unanimously affirmed, without' costs.