242 A.D. 378 | N.Y. App. Div. | 1934
The ruling that the petitioners, appellants, were entitled to only nominal damages because damage parcel No. 36 had been dedicated for street purposes and thereby burdened with private easements, was erroneous. The partition deeds referring to Secor avenue as laid down as a “ proposed street ” did not create an easement. (Matter of City of New York [ Northern
Nor was an easement created by reference to the Burnside deed to Secor avenue “ as shown on the final maps of Bronx County,” and to the partition maps which showed Secor avenue as “ Proposed.” The land conveyed was fully described by metes and bounds. Reference to the final map and to the proposed avenue was by way merely of a convenient and definite “ description and location.” (Matter of City of New York [Northern Blvd.] supra, 148; Matter of Brook Avenue, 40 App. Div, 519; affd. on opinion below, 161 N. Y. 622; Matter of West 229th Street, 135 Misc. 710; affd., 235 App. Div. 608; 259 N. Y. 647; Matter of City of New York [E. 177th St.], supra.)
Moreover, it is to be noted that the whole parcel here involved had at the time of all conveyances, a frontage on two other streets, namely, Boston road on the south and Dyre avenue on the east. Hence no easement by implication was created. (Matter of City of New York [E. 177th St.], supra.) Damage parcel No. 36, therefore, had more than a nominal damage.
It follows that the order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted and the matter remitted to Special Term for reconsideration respecting the award for damage parcel No. 36, and the assessment for benefit.
Finch, P. J., Martin, Townley and Glennon, JJ., concur.
Order reversed, with twenty dollars costs and disbursements, and the motion granted, and the matter remitted to the Special Term for further action in accordance with opinion.
