In re City of New York

215 A.D. 438 | N.Y. App. Div. | 1926

Young, J.

In our original decision of this appeal we decided in substance that as Hannah street went to the water’s edge on January 1, 1898, when the Greater New York charter took effect, the city had an easement" for street purposes in the lands under water between the lines of that street as extended out to the pierhead fine. • (215 App. Div. 204.) Upon the settlement of the order, however, respondents’ counsel points out that that portion of the street extending from Bay street out into the water and to the railroad trestle had been closed in 1912 by a resolution of the board of estimate and apportionment introduced in evidence by appellant. It was further argued that whatever public easement existed in the lands under water in question ceased to exist when the street was closed and, therefore, could not have existed on October 11, 1919, the date of the taking of title by the city in this proceeding.

As the appeal in this case was determined upon a theory somewhat different from that presented by either party, this precise question was not argued upon the briefs upon the original argument. A reargument of this question was, therefore, ordered by the court on its own motion. (216 App. Div. 723.)

It is urged by appellant’s counsel that the purpose of the introduction in evidence of the resolution closing Hannah street and the map accompanying the same was solely to prove the recognition of Hannah street as a public street running to the water in 1912, long after the Greater New York charter took effect, and that there is no legal proof that all the conditions precedent provided by the charter and the Street Closing Act were complied with or that a street closing proceeding was ever begun to award compensation to the abutting owners, and that, therefore, there is not sufficient evidence upon which to base a finding upon this subject. But there is nothing in the record to show that the purpose of introducing this resolution and map in evidence was in any way limited and, as they were received in evidence without objection, they should be given full effect. I think further that it may be presumed that the city authorities had complied with the charter requirements and the requirements of the Street Closing Act and that, therefore, the resolution effected a legal closing of the street.

It results, therefore, that upon the closing of this street in 1912 the public easement was extinguished, leaving the title in fee to the bed of the street in the respondent, The New York Transit and Terminal Company, the abutting owner, freed of any easement for street purposes. When the city took title in 1919 under this proceeding, Hannah street did not, therefore, go to the water’s edge and the common-law principle discussed in our original opinion could have no application to this street, and there could at that time have been no public easement for street purposes over the lands under water abutting the street.

Our decision in this case should, therefore, be modified so as to find that Hannah street from Bay street to the right of way of the Staten Island Rapid Transit Railway Company was closed in 1912 under a resolution of the board of estimate and apportionment of the city of New York and the public easement therein extinguished, and that on October 11, 1919, the New York Transit and Terminal Company was the owner in fee of the lands under water abutting said street, and that the city of New York had no title thereto, nor any easement therein.

Kelly, P. J., Rich, Manning and Kapper, JJ., concur.

Upon reargument the decision of this court made on January 15, 1926, is modified in accordance with opinion.