In re Mayor

Ingraham, J. :

The appellants, the owners of a lot of land upon a street known •as Monroe or Morris avenue, which for many years has been open . as a public street, applied to the coürt by -a petition under section. 14 of chapter 1006 of the Laws of 1895, asking that the commissioners of estimate and assessment appointed in this proceeding be-directed to estimate and determine the compensation which should justly be made to them for loss or damage sustained by the discontinuance or closing of the said Morris avenue upon which the appellants’ property abuts.

It appeared in this proceeding that Morris avenue, upon which the appellants’ land abutted, has been for many years a public street and used as such, but that the street had not been opened under any proceeding instituted by the city of New York; that by chapter ■515 of the Laws of 1890 provision was made for making and filing the maps and plans of the streets and avenues in the twenty-third and twenty-fourth wards of the city of New York; and the commissioner of street improvements for the said wards was directed within a time named to complete the surveys, maps, plans and profiles of all the streets, roads, avenues, public squares and places located and laid out, or thereafter to be located and laid out, in said territory, and that said maps and plans, upon being approved by the board of street opening of the city, and filed as provided for by the act, should be final and conclusive as to the location, width, grades and class of streets, roads, avenues, public squares and places exhibited on such maps, plans and profiles. In pursuance of that •act, maps and plans for the permanent location of the streets and avenues in the twenty-third and twenty-fourth wards were finally adopted on June 17, 1895, and filed December 17, 1895. By those maps a new street called Morris avenue was laid out, but the old Morris avenue, the street or road upon which the petitioner’s property abutted, was indicated upon such map as a street discontinued. Prior to the filing of this map, and on June 12, 1895, chapter 1006 of the laws of that year became a law.. By section 1 it was provided that “ in each city containing, according to the latest census, a population of more than one million two hundred and fifty thousand inhabitants, the local authorities may authorize in the manner hereinafter provided the' discontinuance of such streets, avenues, roads, highways, alleys, lanes and thoroughfares therein as they may deem to be necessary in order to more effectually secure and preserve regularity and uniformity in the general and permanent plan of streets and avenues and public places therein.” By section 2 it was provided that “ the local authorities authorized by law to lay out, open, extend, alter or improve streets, avenues and roads in any such city or district thereof, and to make and file a map or plan showing the streets, avenues and roads so laid out, opened, altered, extended or improved, shall upon any map or plan so made and filed.by them, designate only the streets, avenues, and roads which they may determine to so lay out, open, alter,, extend or otherwise improve as the permanent streets, avenues .and roads in and for such city, or for the particular district or section thereof shown upon such map or plan, omitting therefrom all such former streets, avenues, roads, highways, alleys, lanes and thoroughfares which they may determine to discontinue or close. * * * Upon and after the filing of such map the streets, avenues and roads, shown thereon shall .he the only lawful streets, avenues and roads in that section of such city shown upon such map or plan, and all other former streets, avenues, roads, highways, alleys,, lanes and thoroughfares- theretofore laid put, dedicated or established not shown thereon, and which are not then actually open or in public use, shall from and after the filing of such' map or plan cease to be or remain for any purpose whatever a street, avenue, highway, road, alley, lane or thoroughfare, and the owner or owners of the fee of the land or soil within the boundaries thereof may thereupon enclose,, use and occupy the same as frilly as if the same had not been laid out, dedicated, established or Used.”

The question to be determined on this appeal is whether the filing by the municipal authorities of the city of New York of the map of plan of the twenty-third and twenty-fourth wards under chapter 545'of the Laws of 1890, before referred to, did, under section 2 of chapter 1006 of the act of 1895, discontinue the street shown on the map as the old Morris avenue ; and I think'that the filing of. the map did as a fact operate to discontinue the existing street under this provision. Section 1 of the act gives the municipal authorities, of the cities'mentioned. therein the power to discontinue public streets or thoroughfares in the manner thereafter indicated. Section 2 then provides that the local authorities authorized by law to lay out, open, extend, alter or improve streets, avenues or roads in ■any city or district, and -to make of file a map or plan showing such streets, avenues and roads so laid out, shall, upon any map or plan so made, that is, upon a map or plan not made under the authority of section 1, but under- authority conferred upon them by other provisions of law, designate only- the streets, avenues or roads which they may determine to lay out, open or improve as permanent streets or avenues in and for such city, or a particular section and district thereof; and when the local authorities under existing provisions of law made and filed a permanent map showing the peimanent roads or streets for a city, or a particular district therein, they were directed to show upon such map or plan only the streets or avenues which should be the permanent streets and avenues. The statute then provides that upon and after the filing of such map the streets, avenues and roads shown thereon shall he the only.lawful streets, avenues or roads in that section of the city to which such map or plan relates; and all other former streets, avenues or roads shall, from and after the filing of such map or plan, cease to be of remain for any purpose whatever a street, avenue or road.

It would seem to have been the clear intention of the Legislature to ¡n-ovide that when the permanent plan of a city is finally adopted by the municipal authorities, all streets or roads not shown upon the plan as permanent streets or avenues should be discontinued as public streets; and thus, when the local authorities, under the power granted'by chapter 545 of the Laws of 1890, filed their plan or map •of the twenty-third and twenty-fourth wards of the city of Rew York, locating upon that plan or map certain permanent streets and -avenues, all streets and avenues not therein designated as permanent streets or avenues by operation of this section became discontinued as public streets and avenues. This construction gives -effect to both of the acts and would seem to be necessary for the proper development of these outlying districts of the city of Rew York. It was essential that this Morris avenue as it existed before the making of this permanent plan should be discontinued, as it was inconsistent with the plan of the streets and avenues in that locality -as finally adopted ; and there can be no reason why it should be continued. -:

We also think that merely tracing upon this map the location of the old streets and marking them as streets discontinued was a substantial compliance with the statute which directed the municipal authorities to designate only the streets, avenues and roads which - they might determine to so lay out or improve as the permanent streets and avenues of that portion of the city. The fact that there appeared upon this plan the permanent streets, and also the lines of" existing streets to show their relation to the new streets, plainly indicating that such old streets were to be discontinued and, therefore, to be no longer used by the public as permanent streets or highways, did not affect the operation of - the provisions of law closing those streets not designated upon the plan as permanent streets-of the city. The plain intention of the Legislature by this enactment was, we think, to allow a permanent plan to be made upon which should be indicated the permanent streets or avenues of the city. ' This the plan did, and it was those streets not thus designated on the map as the permanent city avenues and streets that were to-be discontinued as such streets. We think, therefore, that the filing of the plan by the municipal authorities discontinued this old Morris-avenue upon which the plaintiffs’ property abuts, as a public street, and that the owners of the property abutting on the street were entitled under the act of 1895 to compensation from the city for all injuries that they sustained inconsequence of a'discontinuance of this avenue or street as a public street. Section- 3 of the -act of 1895 applied only to proceedings .to discontinue a street or avenue-laid out upon the permanent plan adopted as such; and as this' old. Morris avenue was never indicated upon such permanent plan, the* provisions of this section did not apply When the municipal authorities commenced this proceeding to open Morris avenue, as-laid out upon the permanent map or plan of this portion of the city before referred to as a permanent street, the owners of property abutting on the closed street were entitled 'under section 14 of the-act of 1895 to have the commissioners of estimate and assessment-ascertain and determine the compensation which should justly be-made for any loss or damage to the property occasionéd by - th'& discontinuance or closing ■ of the old Morris avenue upon which, their .property abutted.

The court below denied the application upon the ground that the= filing of the map and plan of this portion of the city tinder the Laws, of 1890 did not have the effect of closing the streets under section % of the act of 1895, and that the petitioner’s easement of light, air and access in the old-street was not affected by that closing of the street.

It is not necessary to determine upon this application whether the. appellants are entitled to damages for the interference with their private easement in this discontinued street. It is for the commissioners to ascertain the damage that they have sustained in consequence of the-discontinuance of Morris avenue as a public street or highway, and their determination of that question is subject to review. The-Legislature intended that the appellants should be compensated for the damage that they should sustain by and in consequence of the-discontinuance' or closing of this street or avenue, and it is this, damage that the appellants were entitled to have estimated and determined by the commissioners in this proceeding.

We think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten. dollars costs.

Rumsey, Patterson and Hatch, JJ., concurred; Van Brunt, P. J., dissented for the reasons stated in the opinion below.^*

* See p. 139.