| N.Y. App. Div. | Jan 29, 1937
Action to restrain the superintendent of highways and the town of Huntington from opening that part of Prospect avenue in Little Neck, town of Huntington, which crosses over the lands of the plaintiffs as the lines of Prospect avenue were established by certain commissioners in December, 1883, on the ground that these parts of said road had been abandoned. Cross-appeals. Amended judgment modified by striking from the second decretal paragraph the word “ not ” at the end of the fifth line thereof, by striking out the word “ denied ” at the end of the thirteenth line thereof, and by inserting in its stead the word “ granted.” As so modified, the amended judgment, in so far as an appeal is taken, is unanimously affirmed, with costs to plaintiffs. Defendants’ proposed conclusions of law numbered 1 and 4, found by the Special Term, are reversed, and plaintiffs’ proposed conclusion of law numbered 5, rejected by the court, is approved and allowed. This court further finds that plaintiffs are entitled to the permanent injunction sought in respect of the portion of the highway extending from the gate of plaintiff Koch to the foreshore, a distance of 234.60 feet. The defendants are concluded by the findings of the trial court that an abandonment had occurred in respect of that portion of the road which is the subject matter of the defendants’ appeal. (Braisted v. Brooklyn & R. B. R. R. Co., 46 A.D. 204" date_filed="1899-07-01" court="N.Y. App. Div." case_name="Braisted v. Brooklyn and Rockaway Beach Railroad">46 App. Div. 204; Haber v. Paramount Ice Corporation, 239 id. 324, 326; affd., 264 N.Y. 98" date_filed="1934-03-20" court="NY" case_name="Haber v. Paramount Ice Corporation">264 N. Y. 98.) The evidence and findings of fact disclose that the highway from Koch’s gate to the foreshore, as authorized in 1883, was never in fact opened or worked to the extent of the width authorized, to wit, three rods, or forty-nine and one-half feet. Therefore that highway must be deemed to have been abandoned under section 205 of the Highway Law, formerly section 234. The working and user of the ancient twelve-foot strip or road was not effective to prevent an abandonment of the easement acquired respecting the portion of the forty-nine and one-half-foot road authorized beyond or outside the lines of this then existing twelve-foot strip contained within the authorized area. (Matter of City of New York [Ludlow Avenue], 164 A.D. 839" date_filed="1914-12-04" court="N.Y. App. Div." case_name="In re the City of New York">164 App. Div. 839, 844.) Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur. Settle order on notice.