135 N.Y.S. 65 | N.Y. App. Div. | 1912
In this proceeding we are called upon to consider appeals by Harold Swain and by the city of New York.
The latter appeals from so much of the order of the Special Term as sustains the objections to the awards of the commissioners of estimate and assessment respecting damage parcels Nos. 1 and 2, and remits the proceeding, so far as concerns these parcels, to said commissioners for reconsideration and correction. Harold Swain appeals from so much of the order as confirms the report of said commissioners respecting damage parcels Nos. 19 and 23.
The order was otherwise appealed from by the city, but we are informed by counsel that all appeals except those above noted have been withdrawn.
The appeal of the city from so much of the order as affects damage parcels Nos. 1 and 2 presents the same question that has already been twice considered by this court and the Court of Appeals, as to the allowance to be made for “transplanted” houses. (Matter of City of New York, Briggs Avenue, 132
The respondent Swain owned the property known as damage parcels Nos. 1 and 2 situated at the corner of Belmont street and Grand boulevard which were to be acquired in this proceeding. He also owned a house which stood partly on the land which had been acquired by the city of New York for the opening of Hawkstone street. In order to make this house available he had to move it to a new location, and he selected the lots to be acquired in this proceeding as damage parcels Nos.' 1 and 2. The commissioners in this proceeding were appointed on April 13, 1906. At some time prior to that date the respondent Swain had begun the excavation of a cellar on the land included in damage parcels Nos. 1 and 2. Whether that excavation was made with reference to the particular building which was afterwards moved upon this lot is not clear. After the commissioners were appointed, and after he had notice of their appointment, he proceeded to build stone foundations in the excavation. In order to move the house from Hawk-stone street to the foundation prepared for it on damage parcels Nos. 1 and 2 it was necessary to carry it across the Grand boulevard, a public highway, and to do this it was requisite to obtain a permit from the president of the borough of the Bronx. At first such permit was refused, because it appeared that respondent intended to place the house upon land to be presently acquired in this proceeding- which was then well under way. Thereupon the respondent professed to change his plans, and represented that it was his intention to place the house upon other property owned by him outside of, but adjacent to, the land to be acquired herein. Upon the faith of this representation a permit was granted to carry the house across the highway. Having moved it across under the permit thus obtained the respondent again changed his plans (if indeed there had ever been any change in them) and proceeded to “ plant ” the house on the foundation which he had prepared
The appeal of Harold Swain, respecting the award to him for damage parcels Nos. 19 and 23 rests upon-an unusual and somewhat complicated state of facts, arising' from the circumstance that a single plot Of land, with a dwelling house thereon, has been taken in condemnation proceedings by the city of New York in two separate proceedings, in which the title vested in the city on different dates.
The appellant On this appeal owned, at one time, a lot of land
It follows that the order appealed from, in so far as the City of Hew York has-appealed therefrom, must be reversed, and the report of the commissioners respecting damage parcels Hos. 1 and 2 confirmed, and said order, in so far as appealed from by Harold Swain, must be affirmed, with ten dollars costs and disbursements to the appellant, respondent, the City of Hew York.
Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.
On the appeal of the City of Hew York order reversed and report confirmed to extent stated in opinion. On the appeal of Harold Swain order affirmed, with ten dollars costs and disbursements to the city. Order to be settled on notice.