120 N.Y.S. 798 | N.Y. App. Div. | 1909
Lead Opinion
This is an appeal from an order confirming the report of commissioners of estimate and assessment. The appeal relates to two parcels, designated. 2 and 8 on the damage map, for which only nominal
On June 13, 1899, commissioners of estimate and assessment were appointed who qualified and filed their oaths on October 8, 1900. The commissioners made and filed a final report on June 8, 1903, in which they made substantial awards for the two plots to which this appeal relates. This report was not presented, to the court for confirmation until June 19, 1906, when it was confirmed as to certain of the property taken, but as to lots 2 and 8 and the assessment for benefit the matter was referred back to the commissioners. On January 6, .1909, the commissioners again made a final report in which merely nominal damages were awarded to the owners of lots 2 and 8. This report was confirmed and from the order of confirmation this appeal is taken. While these proceedings were pending, and on May 15, 1903, an action for partition was begun involving a considerable tract of land, including the land indicated on the city map as Johnson avenue, and the property lying on either side of it and affected by this proceeding. In the course of this action a partition map was made and filed showing the property as divided into lots fronting and abutting on Johnson avenue, as laid out on the city map, and as sought to be acquired in this proceeding. Johnson avenue was not indicated as a portion of the property to be partitioned, and in point of fact was not partitioned, the title, in so far as it had not already been acquired by the city, being retained by the owners in common. The owners by a partition deed made actual partition among themselves of a portion of the property. So much as was not so partitioned was sold by a referee, who gave the usual referee’s deeds therefor. ' In all of these deeds, the partition deed as well as the referee’s deed, Johnson avenue was recognized and used ás a boundary. Upon this state of
- Tile order appealed from is, therefore, affirmed;.
McLaughlin and Clarke, JJ., .concurred; Ingraham and -Houghton, JJ., dissented. ^ .
Dissenting Opinion
I dissent from the'affirmance of this order. ' This proceeding was ■instituted on the 5th of October,. 1.898, by the adoption of a-resolu
\That action proceeded to interlocutory judgment, which was entered on December 12,1906. During the course of that proceeding, a map of this property was made, upon which was shown the street the title to which was then being acquired by the city in this proceeding ; and, in pursuance of a decree of the court, the property was sold at public auction by a referee therein appointed according to this map, and those conveyances were confirmed by final judgment issued on the 24th of May, 1905. When the case came before the Special Term, the city objected to a substantial award for these two pieces of property, because by the filing of this partition map the fee of the land had been dedicated to a public use, and the owners of the lots which had been sold by the referee under the judgment had acquired easements in the property, and the only award which should, therefore, be made was a nominal one. I do not think that any such effect can be given to this map; The fee of the land required for this street was being acquired by the public authorities under proceedings instituted for that purpose. When the property came to be sold under the partition suit, it was essential that the existence of this street, which was about to be opened by the public authorities, should be recognized so that purchasers could acquire lots abutting on the street. The owners of the property included in the bed of the street had appeared before the commissioners and had obtained a substantial award, which only awaited
I think, therefore, that the order should be reversed,
Houghton, J., concurred.
Order affirmed, with ten dollars costs and disbursements.