Fusaro v. D'Angelo

41 A.D.2d 567, 340 N.Y.S.2d 233, 1973 N.Y. App. Div. LEXIS 5233

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1973
• Status: Published

Opinion

In a proceeding pursuant to article 78 of the CPLR to compel the appellant Commissioner to execute a certificate of abandonment of a designated unimproved portion of land known as “ Tamarack Trail ”, pursuant to section 205 of the Highway Law, and for related relief, the appeals are from a judgment of the Supreme Court, Westchester County, dated July 21, 1972, which granted the petition. Judgment reversed, on the law, with a single bill of $10 costs and disbursements to the appellant Commissioner and Town Board against petitioners, and proceeding dismissed on the merits. In our opinion, the deed in question which dedicated Tamarack Trail to the Town of Greenburgh “for highway purposes, and not otherwise,” gave the town the fee of the roadbed and not merely an easement (see Vail v. Long Is. R. R. Co., 106 N. Y. 283, 286-287). Since -the town has the fee of the roadbed, section 205 of the Highway Law does not apply (see New York Cent. & Hudson Riv. R. R. Co. v. City of Buffalo, 200 N. Y. 113, 119-120). The present proceeding, which seeks to compel execution of a certificate of abandonment, together with related relief, should therefore be dismissed on the merits. Munder, Acting P. J., Martuscello, Gulotta, Brennan and Benjamin, JJ., concur.