120 N.Y.S. 839 | N.Y. App. Div. | 1909
Dissenting Opinion
I dissent from the affirmance' of this judgment. Express authority was conferred by law for the filing of certain maps and profiles of the twenty-third and twentj'-fourth wards of the city of New York. In pursuance of the authority thus conferred final maps and profiles were duly filed upon which One Hundred and Sixty-first street was laid out of the width of 100 feet. By section 958 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1893, chap. 267, § 2) the municipal corporation was expressly authorized to “ acquire title, for the use of the public, to all or any of the lands required for the streets, avenues and roads, public squares and places, laid out in the twenty-third and twenty-fourth wards of the said city of New York, or any portion of said streets, avenues, roads, public squares and places in the said twenty-third and twenty-fourth wards of said city, whenever it shall deem it for the public interest so to do.” Section 957 of the Consolídátion Act (Laws of 1882, chap. 410) provides that “no street or avenue not laid out before May twenty-third, eighteen hundred and seventy-three, shall be constructed through or-upon the depot or station grounds of any railroad or branch of the same, then 'operated by steam within the said wards, unless with the consent of the said railroad company.” To widen One Hundred and Sixty-first street to 100 feet there was required a strip of land on the .north side of the existing One Hundred and Sixty-first street extending from Morris to Sheridan avenues. The block of which this strip was a part had -been acquired by the New York Central Railroad Company, and was used as a yard in which the cars' of the company were stored, and for other purposes. No part of this strip required for the widening of One Hundred and Sixty-first street had been used by the railroad company for any of the purposes of a railroad. The tracks that had been constructed did not extend to this strip of land, and the only purpose fofwhich.it appears to have been used was for piling unused timber or other materials upon it. There was an entrance to the railroad yard from One Hundred and Sixty-first street as unwidened, but such an entrance; so
Lead Opinion
Present —Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ. (Ingraham and Scott, JJ., dissented).