In re Mayor of New York

88 N.Y.S. 769 | N.Y. App. Div. | 1904

Lead Opinion

O’Brien, J.:

The question presented on petitioner’s claim for damages iff* whether, under the provisions of chapter 1006 of the Laws of 1895, the two-year or the six-year Statute of Limitations is applicable. The appellant insists that map No. 171, filed on June 12, 1890, was-not a legal map, and, therefore, was ineffectual to discontinue old .Quarry road or Valentine avenue or a part of East One Hundred; and Seventy-eighth street. ,

This map was made under the authority of section 672 of chapter 410 of the Laws of 1882, as amended by chapter 530 of the Laws of 1885, and also pursuant to chapter 721 of the Laws of 1887. The two grounds upon which the petitioner’s claim of illegality are based-are, first, the failure of the city to show that the notice of publication which was necessary under chapter 721 of the Laws of 1887, was; published in the daily papers ; and, second, the failure to have upon the map, as provided by section 672 of chapter 410 of the Laws of 1882 (as amd. by Laws of 1885, chap. 530), a certificate made by the president of the park board or by another designated officer or commissioner before a person authorized by law to take acknowledgments of deeds.

It is conceded that if the map was properly filed in 1890, it effectually discontinued the street in question as a public street * but, under the decisions, there would still survive the private rights-of light, air and access which are appurtenant to a lot abutting upon-a public highway. (Holloway v. Southmayd, 139 N. Y. 390 ; Holloway v. Delano, Id. 412; Matter of Mayor, 28 App. Div. 143.) These are authorities for the proposition that, prior to the passage of chapter 1006 of the Laws of 1895, the effect of the closing of á. street in the city of New York was that the public easement in the street was alone extinguished, and that the private easements of light, air and access therein of the owners of abutting land remained.

Chapter 545 of the Laws of 1890 did not authorize the extinguishment of these private easements, and the Legislature of 1895 evidently intended to supplement the law of 1:890 so as to enable the city to adopt a general and comprehensive scheme" for the permanent laying out and opening of new streets and discontinuing of old streets that interfered with such plan. Taking the two acts, therefore, of 1890 and 1895 they were sufficient, where their provisions were followed in closing old streets, to destroy both public rights and private easements of abutting owners.

Whether Quarry road or East One Hundred and Seventy-óighth street was discontinued as a public street necessarily depends upon a determination whether the map as filed in 1890 Was legally filed. That it was filed in the proper office is conceded; and with respect to the publication of the notice in the papers as required by chapter 721 of the Laws of 1887, we think that the burden of showing that the legal steps prescribed as preliminary to filing were not taken, would be on the one who assailed the legality and regularity of the filing, and that at the outset he would be met by the presumption in favor of the legality of the public map which had thus been filed and acted upon as a valid document. With respect, therefore, to the notice of publication, we think that the appellant is in error in saying that the burden rested upon the city to prove such publication.

In the recent case of City of New York v. Streeter (91 App. Div. 206), wherein an action was brought to recover a personal tax, and the question presented was the extent of proof on the part of the city necessary to establish a prima facie case, it was said: “With respect to the acts of judicial tribunals as well as those of constituted boards it has been frequently held that they will be regarded as presumptively valid until questioned or assailed under the maxim Omnia prcesumuntur legitime facta donee probetur ■in eontrarium. * * * In Wood v. Morehouse (45 N. Y. 368) the court says: ‘ Neglect of duty by a public officer will not be presumed but must be proved. * * * and in support of his acts the familiar maxim, orrmia prcesumuntur rite esse aeia, stands for evidence of the fact in the absence of any other evidence. When a person is required to do an act, the not doing of which would make him guilty of a criminal neglect of duty, it shall be intended that he has duly performed it unless the contrary be shown. Stdbit prmsumptio donee probetmr in conto'd/ri/amh * * * The defendant * * * rested * * * upon what he claims to be omissions of the plaintiff in furnishing in minutest detail proof of the successive steps that would end in duly imposing the tax upon the defendant. It will be seen, therefore, that there is no merit in the defendant’s position. * * * We deem it unnecessary to follow the appellant in the detailed argument as to the respects in which he thinks there was failure to prove regularity in the imposition of the tax such as proper publication and other minor details.”

And in City of New York v. Vanderveer (91 App. Div. 308), wherein also it was sought to enforce a personal tax, it was said: “ The requirement is that they (the tax books) shall be kept open and as the statute is silent with respect to the evidencing of such act * * * the legal presumption applies that the officers have performed their duty in this respect and that the burden, therefore, is cast upon the defendant to make it otherwise appear if such is the fact. (McLaughlin v. Miller, 124 N. Y. 510; Hand v. Supervisors of Columbia County 31 Hun, 531; Wood v. Terry, 4 Lans. 80.) ”

The rule is thus stated in Chase v. Lord (77 N. Y. 1), wherein a provision of chapter 308 of the Laws of 1849, for the incorporation of insurance companies was under consideration: “Thelegal presumption is that all statutory conditions have been complied with. This presumption continues until the contrary is shown. No duty rested upon the stockholder to do this, and it is incumbent on the plaintiff to establish a non-compliance with the provisions of the statute before he can charge the defendant. (Bruce v. Driggs, 25 How. Pr. 71.) ” These cases apply with equal force to the suggestion that it was incumbent on the city to prove, with respect to the filing of the map in 1890, due publication, because it appearing that the map was filed in the proper office, it will be presumed that the necessary preliminary steps have been taken by the proper officials.

The more serious question is that relating to the acknowledgment of the certificate which it is insisted should appear on the map. The map shown in the record is certified by W. Hutchins, president of the board of parks, but such certification upon the face of the map does not appear to have been acknowledged before an official entitled to take acknowledgment of deeds. There is nothing in section 672 of chapter 410 of the Laws of 1882 (as amd. by Laws of 1885 chap. 530) which requires the acknowledgment to appear upon the face of the map,, and it could, therefore, have been taken upon a separate piece of paper, and it is not improbable that this was done and the separate acknowledgment filed at the same time with the map. With respect to the filing of a map which requires to be acknowledged, justas with a deed, it is the duty of the recording officer, or the person in charge of the office wherein public documents are filed, to see to if that the legal requirements which entitle it to be filed have been complied with. And we do not think, from the mere fact that the acknowledgment does not appear upon the face of the map, that we would be justified in concluding that the department making and filing the map, or that the officers who accepted it for filing, failed to perform the duty devolving upon them of seeing to it^that the legal requirements were observed. Here, too, the presumption that officers upon whom the law imposed a duty performed it, may be invoked, and this presumption is not destroyed or rebutted by the fact that the acknowledgment does not appear upon the face of, or attached to, the map as printed in the record. In this connection we have, in addition to the authorities above referred to, the case of People ex rel. Kingsland v. Palmer (52 N. Y. 83), where certificates were given by commissioners for services rendered, and although one of the five commissioners had died and another had removed from the State, it was held that “ the three commissioners still in office having joined in the certificate, the presumption is that the act was regularly done and at a. meeting of all.” (Citing Downing v. Rugar, 21 Wend. 178.)

In our view, therefore, the street in question, by the filing of the rnap in 1890, was closed and discontinued as a public street.

There remained, however, as held by the authorities which we have cited, the private easements which the petitioner had and enjoyed up to their final destruction by the filing of the map under the act óf 1895. As the damages which she suffered by the destruction of these private easements were due to the filing of the map under the provisions of the statute of 1895, we do not see why she was not entitled to have the six years’ limitation apply to her claim, therefor. In other words, the private easements of the petitioner over the land, of the discontinued street were lost to her by the filing of the map of 1895 and not that of 1890. We think, therefore, that by the filing of the map in 1890 the petitioner lost only her public easements in the street which was discontinued as a highway. This being a damage suffered before the enactment of chapter 1006 of the Laws of 1895, was, under the provisions of section 5 of that act, barred in two years after the passage thereof. But her private easements of access over the soil of the discontinued street to the new street remained to her in the full enjoyment thereof. Of this right she was deprived by the filing of the map of December, 1895, which was filed under the provisions of said chapter 1006. This being a a new and additional damage caused to her by the filing of that map, she had, under the provisions of the said section 5, six years after the filing of the said map in which to present her claim and petition for compensation for the deprivation of those private easements.

To this extent we think the petitioner was entitled to relief; and for the reason that her petition was in all respects denied, we think that the order appealed from should be modified by denying the application so far as it relates to any damages which she lost by the discontinuance of the street as a public highway, but granting it as to damages which she may have sustained by the destruction of her private easements. As modified, the order should be affirmed, without costs.

McLaughlin, Hatch and Laughlin, JJ., concurred ; Ingraham, J., dissented.

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Dissenting Opinion

Ingraham, J. (dissenting):

I dissent so far as it is held that by chapter 1006 of the Laws of . 1895 the private easements appurtenant to the petitioner’s property over any portion of a street were destroyed, or that by reason of that act the petitioner can recover in this or any proceeding against the city any sum of money on account, of such private easemerits. These easements were appurtenant to the petitioner’s property and a part of it. The Legislature could not by a legislative act appropriate those private -easements without compensation; nor could the Legislature require that money- raised by taxation be applied to the purchase of a private easement owned by the petitioner for any purpose, except á public use. The result of allowing the petitioner in this proceeding to have the value of the private easement appurtenant to her property over the discontinued street assessed would be to impose a tax for the amount paid to her upon abutting property which would be taxing the abutting property for other than a public use. I dissent, therefore, from any modification of' this order and think it should be affirmed.

Order modified as directed in opinion, and as modified affirmed, without costs.