In re the City of New York , 234 A.D. 875 ( 1931 )

In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired for the Same Purpose in Fee, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening and Extending Surf Avenue, from West Fifth Street to West Thirty-seventh Street, in the Borough of Brooklyn, City of New York. E. M. A. Realty Co., Inc., and Others, Respondents.

The decision of this court handed down on December 4, 1931, is hereby amended to read as follows: Final decree modified by striking therefrom the joint award made for damage parcels Nos. 303 and 304, and proceeding remitted to the Special Term for a rehearing as to said parcels, costs to abide the event. As so modified, the final decree is affirmed, with costs to prevailing respondents who have filed briefs on this appeal. As to the awards for damage parcels other than Nos. 303 and 304, it does not appear that the learned Special Term adopted or followed any erroneous theory. The joint award of $9,550 for parcel 304 and the westerly sixty feet of parcel 303 was on the erroneous assumption that said westerly sixty feet of parcel 303 was a “railroad parcel ” and the award therefor was at the same rate as for parcel 304, which was a “ railroad parcel.” Besides, it appears that the only encroachment of this parcel 303 within the fines of Surf avenue was an overhead canopy. Young, Kapper, Seudder and .Tompkins, JJ., concur; Lazansky, P. J., concurs except as to “ non-railroad parcels ” which were subject to easement that ten-foot strip be used for courtyard purposes, as to which he dissents. The “ railroad parcels ” were never burdened with that easement. It is conceded that the 1890 proceedings cast that burden on the “ non-railroad parcels.” Nothing in the record warrants the conclusion that they have been released therefrom. Even with the burden of such easements, the ten-foot strip may have substantial value and deprivation of it may give rise to consequential damages.