142 N.Y.S. 120 | N.Y. App. Div. | 1913
The petitioner is the owner of property abutting upon Hawk-stone street (also known as Sixth avenue) in the borough of
We have already decided in a case arising out of the discontinuance of this same street that whatever damage resulted to any abutting owner in consequence of such discontinuance accrued on the date on which the said street was legally discontinued, to wit, July 5, 1905. (Matter of City of New York [Dimelow Claim], 145 App. Div. 855; affd., 204 N. Y. 670; Matter of Mayor, etc., 166 id. 495.) The plaintiff claims damages under án assignment from those who owned the property on July 5, 1905.
By the Street Closing Act of 1895 provision is made for the ascertainment of the damage sustained by the owner of land abutting upon a discontinued street either upon application of the corporation counsel in behalf of the city, or of the aggrieved property owner. With respect to the latter the act undertakes to establish a limitation of time within which a claim for such damages must be presented. The language is: “Provided, however, that within six years after the filing of such map [that is, a map or plan indicating that the street is to be discontinued] any owner or owners interested and affected by such discontinuance and closing shall present to the chief financial officer or comptroller- of such city a written statement or claim for compensation, * * * or be forever barred from claiming compensation for such closing or discontinuance.” (§5.)
It has been held that this limitation applies literally to the case of the owner of land abutting upon a projected street, road or avenue, not actually in usé when the permanent map or plan was filed,, and which, therefore, became ipso facto legally discontinued upon the filing of the map, for it was then that the damages, if any, accrued. ■ (Matter of Richard
In the Dimelow Case {supra), as in the present, the street upon which the claimant’s land abutted was in actual use when the permanent plan of 1895 was adopted, and was not, under the established construction, legally discontinued until July, 1905, ten years after the filing of the permanent plan. Obviously the limitation of six years after the filing of the plan was inapplicable to such a case, and it was so held. In that case the notice of claim was filed within six years after Hawkstone street had. been legally discontinued by the opening of One Hundred and Seventy-second street, but, of course, much more than six years after the filing of the permanent plan. It was held that under these circumstances the limitation contained in section 5 of the Street Closing Act could not be legally applied, and that since no damage accrued until the street , was legally discontinued, the limitation of time within which to file a claim could not begin to run until the legal discontinuance had been effected. It was accordingly held that the claim in that case had been filed in time.
We now have presented the question whether, under the circumstances of this case there is any limitation of time within which a claim may be filed, and, if so, what that limitation is. In the case at bar, the claim was not filed until May -1-, 1912, more than six years after the right to compensation accrued, and the claim of the corporation counsel is that this is too late, and that no effective claim can be filed after the expiration of six years from the date of the legal closing of Hawk-stone street, at which date, as it is conceded, the damage, if any, accrued. This question was expressly left open in the discussion of the Dimelow case.
There can be no doubt that it was the intention of the Legislature to place a reasonable limit upon the time within which claims for damages arising from the discontinuance of a street should be presented. As to streets not in use when the general plan was filed, and which were automatically discontinued by the fact of filing, the provision of the statute is precise and easily applied. As to them it is reasonable and proper that the limitation should begin to run from the date of
It follows that the petitioner’s claim was filed too late and that the motion to refer it to the commissioners of estimate and assessment should have been denied.
The order appealed from should he reversed, with ten dollars cost and disbursements, and motion denied, with ten dollars costs.
Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.