Ingraham, J.:
This is a proceeding instituted by the mayor, aldermen and commonalty of the city of New York to acquire title to the land necessary to open East One Hundred and Sixty-eighth' street, in the twenty-third ward of the city of New York. The proceeding was commenced in the year 1896, and on the 8th day of October, 1896, commissioners of estimate and assessment were appointed by the Supreme Court. The commissioners duly qualified, and while engaged in the performance of their duties on the 15th .day of April, 189.7, the appellants presented a petition to the Supreme Court which alleged that the appellants Deering and - Brown were the owners .of a piece of property abutting on One Hundred and Sixty-eighth street, a portion of which was taken for the opening; of' [179] the street; that their property also abutted on Gerard avenue, running at right angles to One Hundred and Sixty-eighth street, and the appellant Strouse was the owner of property abutting upon Gerard avenue north of One Hundred and Sixty-eighth street; that Gerard avenue had been duly laid out and established as a public street and the title thereto acquired by the city of Hew York ; that upon the map or plan of that portion of the city adopted June 1, 1894, the lines of Gerard avenue as formerly laid out have been altered or changed, and a portion of Gerard avenue closed, so that the petitioner’s premises have lost their frontage upon said Gerard avenue ; that damage and loss resulted to the petitioners as a result of this closing of a portion of Gerard avenue, and, therefore, the-petitioners ask that an order be entered under and pursuant to section 14 of chapter 1006 of thé Laws of 1895, directing the commissioners of estimate and assessment to ascertain and determine the compensation that should be paid to the petitioners in consequence of the discontinuance and closing of said Gerard avenue between. One Hundred and Sixty-eighth and One Hundred and Sixty-ninth streets, and that the said commissioners further and separately appraise and report the value of the right, title and interest of the-city of Hew York in and to the fee of the land remaining in said Gerard avenue, discontinued and closed in front of the petitioners’ said premises, over and above such sum as they may assess for benefit on such parcel of land, as provided by section 6 of chapter 1006 of the Laws of 1895.
Hpon the presentation of this petition an order of the Special Term was entered on the 30th of April, 1897, by which the commissioners of estimate and assessment were authorized and directed to ascertain and determine the compensation to which the petitioners were entitled in consequence of the discontinuance and closing of a portion of Gerard avenue, and the said commissioners were also-directed to further and separately appraise and report the value of the right, title and interest of the city of Hew York in and to the fee of the land on Gerard avenue, discontinued and closed in front of the petitioners’ land. Pursuant to this order the commissioners, of estimate and assessment in this proceeding took the testimony offered by the petitioners in support of their claim for the damages sustained by them in consequence of the closing of Gerard avenue, [180] and also as to the value of land belonging-to the ¡city of New York within, the portion thereof closed. Testimony was also submitted by, the city of New York.- .Subsequently, on the 12th-.day, of December, 1901, the commissionei’s filed their preliminary abstract of ¡estimates of awards and assessments for the opening of One Hundred and Sixty-eighth' street, but such abstract contained no estimate by the-commissioners.of the.loss.and damage sustained by the petitioners by reason of the closing of Gerard avenue, or of the value of the lands' remaining in the closed portion of said Gerard avenue. Subsequently .the petitioners presented to the commissioners objections to the preliminary report, based upon the failure of the commissioners to include therein the damages to which the petitioners would be entitled in consequence of the closing of the portion of Gerard avenue in front of their premises, and also, the refusal to report the value of the land remaining in said Gerard avenue, discontinued and closed in front of the appellants’ premises. Notwithstanding this objection the commissioners made their final report, without including the 'estimate of the damage sustained by these appellants, which report was, upon motion of the corporation counsel, despite the opposition of - the petitioners, duly confirmed by the Supreme Court, and from that order the petitioners appeal.
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Ingraham, J.:
This is a proceeding instituted by the mayor, aldermen and commonalty of the city of New York to acquire title to the land necessary to open East One Hundred and Sixty-eighth' street, in the twenty-third ward of the city of New York. The proceeding was commenced in the year 1896, and on the 8th day of October, 1896, commissioners of estimate and assessment were appointed by the Supreme Court. The commissioners duly qualified, and while engaged in the performance of their duties on the 15th .day of April, 189.7, the appellants presented a petition to the Supreme Court which alleged that the appellants Deering and - Brown were the owners .of a piece of property abutting on One Hundred and Sixty-eighth street, a portion of which was taken for the opening; of' [179] the street; that their property also abutted on Gerard avenue, running at right angles to One Hundred and Sixty-eighth street, and the appellant Strouse was the owner of property abutting upon Gerard avenue north of One Hundred and Sixty-eighth street; that Gerard avenue had been duly laid out and established as a public street and the title thereto acquired by the city of Hew York ; that upon the map or plan of that portion of the city adopted June 1, 1894, the lines of Gerard avenue as formerly laid out have been altered or changed, and a portion of Gerard avenue closed, so that the petitioner’s premises have lost their frontage upon said Gerard avenue ; that damage and loss resulted to the petitioners as a result of this closing of a portion of Gerard avenue, and, therefore, the-petitioners ask that an order be entered under and pursuant to section 14 of chapter 1006 of thé Laws of 1895, directing the commissioners of estimate and assessment to ascertain and determine the compensation that should be paid to the petitioners in consequence of the discontinuance and closing of said Gerard avenue between. One Hundred and Sixty-eighth and One Hundred and Sixty-ninth streets, and that the said commissioners further and separately appraise and report the value of the right, title and interest of the-city of Hew York in and to the fee of the land remaining in said Gerard avenue, discontinued and closed in front of the petitioners’ said premises, over and above such sum as they may assess for benefit on such parcel of land, as provided by section 6 of chapter 1006 of the Laws of 1895.
Hpon the presentation of this petition an order of the Special Term was entered on the 30th of April, 1897, by which the commissioners of estimate and assessment were authorized and directed to ascertain and determine the compensation to which the petitioners were entitled in consequence of the discontinuance and closing of a portion of Gerard avenue, and the said commissioners were also-directed to further and separately appraise and report the value of the right, title and interest of the city of Hew York in and to the fee of the land on Gerard avenue, discontinued and closed in front of the petitioners’ land. Pursuant to this order the commissioners, of estimate and assessment in this proceeding took the testimony offered by the petitioners in support of their claim for the damages sustained by them in consequence of the closing of Gerard avenue, [180] and also as to the value of land belonging-to the ¡city of New York within, the portion thereof closed. Testimony was also submitted by, the city of New York.- .Subsequently, on the 12th-.day, of December, 1901, the commissionei’s filed their preliminary abstract of ¡estimates of awards and assessments for the opening of One Hundred and Sixty-eighth' street, but such abstract contained no estimate by the-commissioners.of the.loss.and damage sustained by the petitioners by reason of the closing of Gerard avenue, or of the value of the lands' remaining in the closed portion of said Gerard avenue. Subsequently .the petitioners presented to the commissioners objections to the preliminary report, based upon the failure of the commissioners to include therein the damages to which the petitioners would be entitled in consequence of the closing of the portion of Gerard avenue in front of their premises, and also, the refusal to report the value of the land remaining in said Gerard avenue, discontinued and closed in front of the appellants’ premises. Notwithstanding this objection the commissioners made their final report, without including the 'estimate of the damage sustained by these appellants, which report was, upon motion of the corporation counsel, despite the opposition of - the petitioners, duly confirmed by the Supreme Court, and from that order the petitioners appeal.
The appellants, insist, that the commissioners were bound to include in one report their estimate of damage and benefit allowed for the acquisition of the property required for the benefit of One Hundred and Sixty-eightli street, and the estimate of the damage sustained by the appellants in, consequence of the closing- of a portion of Gerard avenue. The counsel for the corporation insists that, as these were separate' proceedings, instituted under separate statutes, the commissioners properly refused to include both in one report. This question does not seem to have been presented in any case that, has been reported/ These two proceedings have no particular relation to each other. One of the appellants has no relation or interest in the opening of One Hundred and Sixty-eighth street, as no property of his is taken for that purpose, and the property - for which. he claims, to be entitled to damage does not abut upon that stréet. ¡The amount of the award to the appellants; has no relation to the opening of One Hundred and Sixty-eighth -street.- The amount, if any, ■ to which they are entitled in consequence of the closing - of Gerard [181] avenue is not at all dependent upon the action of the commissioners in relation to One Hundred and Sixty-eighth street. Any assessment that would be imposed by the commissioners for the damages allowed to the appellants would necessarily be based upon an entirely different principle from that applied for the acquisition of property for the opening of One Hundred and Sixty-eighth street. The two proceedings are. based upon different statutes and have no possible relation to each other. They are only connected by the fact that Gerard avenue runs at right angles to One Hundred and Sixty-eighth street, and the property of one of the appellants abuts upon both streets. It would seem to be essential for the protection of the owners of property upon whom an assessment may be imposed for the opening of One Hundred and Sixty-eighth street, and the owners of" property upon which an assessment for the damages caused by the closing of a portion of Gerard avenue, that the awards and assessments should be separately stated, so that those persons who have to pay for these two separate and distinct assessments could ascertain the amount of the particular awards and the principle upon which their property was assessed. There seems to be no reason why such distinct proceedings should necessarily be included in one report. So far as the acquisition of property for the opening of One Hundred and Sixty-eighth street is concerned, the owners of the property taken are entitled to its value, and the owner of the property.- benefited by the opening of the street are required to pay the cost to the city of acquiring such property. The proceedings-under which the city of New. York acquires the title to the street are regulated by'the Revised Laws of 1813 (Chap. 86, § 177 ét seq'.), the provisions of which have been continued and are in force as part of the present, charter of the city of New York (Laws of 1897, chap. 378, § 970 et seq., as amd. by Laws of 1901, chap.- 466). Upon the closing of a public street, however, prior to the enactment of the act of 1818, to which I will call attention, the owners of abutting property had no right to an award for the damages sustained by the closing or discontinuing of a street or avenue.
The distinction between these two proceedings is illustrated by the opinion of Mr. Justice Patterson on an appeal from the order authorizing the commissioners in this proceeding to take proof of the ■ damage sustained by the discontinuance of Gerard avenue [182] (Matter of Mayor, 28 App. Div. 143). It is there said :• “ Closing a street is the reverse of opening one. In the latter ease private property is taken for a plain public use. * * * On closing a ■street the public right in the street ceases, and the title to and ownership of the fee of the land within the lines of "the street subject to any private easements therein becomes vested in the grantor, or .his heirs if the street were dedicated, or in the city if the land were taken by condemnation proceedings.”
The whole object, therefore, of a proceeding to determine the value of the portion of Gerard avenue that was closed is to determine what amount the abutting owners should pay to the city of Hew York to acquire title to the land in. front of their property, .and what sum should be paid to the abutting owners for the damage ca'used by closing the street-,, and that certainly has no possible relation to the proceedings to acquire title to the land necessary to open One Hundred and Sixty-eighth street.
By chapter 213 of the Laws of 1818 provision was first made for the payment, to owners of property abutting on a public street which had been closed or discontinued, of damages sustained by such abutting property owners in consequence of the discontinuance of the street. Section 1 of that act provides that it shall be lawful for the mayor, aldermen and commonalty of the city of Hew York to apply to the Supreme Court for the appointment of commissioners to make .■a just and true estimate of the loss and damage to the respective owners, lessees, parties and persons respectively entitled unto or interested in any lands, tenements, hereditaments or premises by or in consequence of closing any road, street, lane or alley, or any part of any voad, street, lane or alley, and converting the same to the use of •the said mayor, aldermen. and commonalty, and report thereon to the said Supreme Court. Section 3 provides that the mayor, ■aldermen and commonalty of the city of Hew. York shall, .within .four months after the confirmation by the court of. the report of the commissioners in the premises, pay to the respective, persons and parties mentioned or referred to in said report, in whose .favor any sum or sums of money shall be estimated and reported by ■the said commissioners, the respective sum or sums so estimated and veported in their favor respectively. By section 8 it was provided .that whenever the mayor, aldermen and commonalty, of the-city of [183] New Y ork shall be desirous to open, lay out or form any street or public place, or to extend, enlarge, straighten, alter or otherwise improve any street or public place which shall be contiguous to, or in the neighborhood of any lot of ground fronting on any street, or part of a street, which they may pray to have closed, then it shall be lawful for them to unite in such application as aforesaid, an application to the said court to open, lay out and form any such street or public place, in pursuance of the provisions of the act of 1813. Section 9 provided that when an application-to close and to open or extend any street or public place shall be united in the same application, it shall be the duty of the said commissioners to proceed to and make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage, or of the benefit and advantage, if any, over and above the loss and damage,, as the case may be, to the respective owners or lessees, respectively entitled unto or interested in the lands, tenements and hereditaments fronting on any road or street, which application may be made to close, as aforesaid, by and in consequence of closing any such street, or opening, extending, enlarging, straightening or altering any such street or public place. Section 10 of the act provided that when applications shall be joined as aforesaid, it shall be the duty of the commissioners to deduct from the amount of the damages which may be sustained by and in consequence of opening, laying niAoand forming any street or public place or otherwise improving any street or public place, the amount which the street may be worth, if any, over and above the sum which the said mayor, aldermen and commonalty may be required to pay for the same as aforesaid, and to assess that sum upon the said mayor, aldermen and commonalty, or if the sum which they shall be required to pay for the same shall exceed the value of the-same, then it shall be the duty of the said commissioners to award to the said mayor, aldermen and commonalty the amount of such deficiency and to- assess the same upon the property of those which may be benefited as aforesaid.
There was here prescribed two methods of ascertaining the loss to abutting owners by the closing of a street. The municipality was • entitled to apply to the Supreme Court for commissioners to appraise the value of the easement of the abutting owners in the street closed, and were then-required to pay the amount awarded to [184] such owners. Where, however, the municipality united in one proceeding an application to close a street and to open an adjoining street, then one report was contemplated, in which all questions as between the abutting owners and the city were to be finally disposed of. And these provisions of the act of 1818 were continued in the •Consolidation Act (Laws of 1882, chap. 410, .§ 1010 et seq.). But this provision as to one proceeding related only to a proceeding where the municipality applied in one proceeding to close one street and open another, and did not relate to a case where a street had been closed or discontinued by law prior to the time Of the application for the appointment of commissioners.
Prior to the' passage of the act of 1895, under which this application is made, many streets and avenues, in the city of New York had been discontinued, or Were inconsistent with the plans of the city of New York which had been adopted by the municipal authorities. By chapter 1006 of the laws of that- year, provision is made for closing streets and avenues that were inconsistent with the plans of the city as finally adopted. Section 2 of that act provides that after the final adoption of the map of the city of New York the streets shown thereon should be the only lawful streets or avenues in the city, and all other former streets or avenues not shown thereon should cease to be or remain for any purpose whatever public streets or avenues. Section 3 of the act authorizes the public authorities to discontinue or close any street or avenue laid out upon such general plan; and by sections 4 and 5 provision is then made for ascertaining the damage sustained by any person interested in property abutting on such street or avenue so closed; and upon such application the court is required to appoint 'commissioners of estimate and assessment for the purpose of performing the duties prescribed by sections 4 and 5 of the act. Section 6 prescribes the proceeding for the appointment of such commissioners. That section contemplates the appointment of independent commissioners, -and a report in relation to- the damage caused by the closing of any street or avenue, and that the damages which may be allowed by said commissioners and all expenses incurred in the proceeding to ascertain such damage shall' be assessed by the commissioners upon the property benefited thereby, to the extent of the benefit so received, in the same manner as. assess[185] ments for acquiring land for streets or avenues in such city are assessed as provided by existing laws relating thereto. Provision is made for the payment by the city of New York to the persons in whose favor awards are made (§§ 11-13). Section 14 of the act provides that whenever, as often as the local authorities shall institute proceedings to open any street or avenue laid out upon ,the general or permanent map or plan of such city, or district thereof, which shall be contiguous to or in the neighborhood of any lot or parcel of ground fronting on any street or avenue which they have discontinued and closed, and proceedings have not been had or completed to ascertain the damage caused by such discontinuance or closing, the court which shall appoint or lias appointed commissioners of estimate and assessment in respect to such opening may, at any time, upon the application of the chief law officer or counsel to the corporation of such city, or of any party or person interested in the land fronting upon the street or avenue so discontinued and closed, order and provide, if it shall appear to the said court to be expedient and proper, that the same commissioners of appraisal or of estimate and assessment shall ascertain and determine the compensation which should justly be made for any loss and damage to the respective owners, lessees, parties and persons respectively entitled in possession, reversion or remainder unto, in and to, or included in any lands or interests taken, affected or damaged by and in consequence of the discontinuance and closing of the said street or avenue; and the said commissioners of appraisal or of estimate and assessment shall thereupon make such estimate accordingly, and the proceedings to ascertain and determine the same shall be conducted and completed in accordance with the provisions of existing laws relative to the opening of the street or avenue for which thé said commissioners were appointed, “ except that any parcel of land deemed to be benefited may be assessed to the extent provided for in section six of this act, and the amount awarded for and by reason of such discontinuance or closing shall be included in the amount of the expenses to be assessed upon the property benefited in said proceeding. From and after the making and filing of the order of the court instituting or consolidating said proceedings as aforesaid, no further or other proceeding shall be taken relative to ascertaining and determining the compensation which should be made for such discontinuance or closing.”
[186] It is under this provisión of this section that the commissioners in •this proceeding were directed to ascertain and report the amount due to these appellants for the damages sustained by them in. consequence of the closing of Gerard avenue. A comparison .of this act of 1895 with the act of 1818 will show that the. act of-1895 was based upon- the provisions of the act of 1818 and the proceeding under it. By the act of 1818 two separate proceedings were contemplated, one based solely upon the petition of the municipal authorities to discontinue a street, and one upon a joint proceeding to discontinue one street and open a street adjoining or contiguous thereto. By the act of 1895 a proceeding was authorized where a street had been discontinued by operation of law; and where such a street had been or thereafter should be discontinued it. ivas made the duty of the corporation counsel to institute a proceeding to ascertain and détermine the damages that had been sustained by the persons interested in property abutting upon such street. This was entirely distinct from a street opening proceeding and had no relation to the opening'of any street or avenue.. Section 14 authorized the court, “ if it shall appear to the said court to be expedient and proper,” to appoint the same commissioners to make -this estimate as were appointed to make the estimate for the opening of a street or avenue contiguous to or in the neighborhood of a lot or parcel of land fronting on a sti’eet or avenue which had been discontinued and closed ; but the duties imposed upon the commissioners thus designated to make such an appraisal were. entirely distinct from the duties imposed upon the commissioners for the opening of the street. Thus, the same commissioners were appointed to perform independent duties and were to make a just and true estimate of the compensation that should be made for any loss or damage caused by the closing of the streets or avenues described in the petition and also the benefit and advantage to the lands or premises benefited by such discontinuance or closing “ and to report thereon to said Supreme Court without unnecessary delay.” In said report the commissioners were required to set forth' the names of the respective owners or persons entitled to. or interested in the lands to whom compensation should be made or which should be. assessed for benefit and other' details in relation' to the inquiry which 'they were directed to make.
[187] I can find no provision of this act that requires the commissioners to delay the report in the street opening proceeding until they have finished their investigation in the proceeding which relates to the closed and- discontinued street. There would seem to be no objection to the commissioners including the separate matters in one report if in their opinion the questions could be thus disposed of; but it is quite evident that conditions might arise which would render it improper to include in one report both subjects, and that question should be, we think, left to the discretion of the commissioners. Where' the same property was affected by both proceedings it might be practicable to include them both in one report, but in making the assessment upon property affected by the street opening proceeding the commissioners are not restricted to one-half the value of the property assessed in the proceeding in relation to the closed street as they are in a proceeding to open a street. Where there is property affected by a proceeding in relation to the closed street which is not affected in the street opening proceeding, as the statute contains no provision which requires the commissioners to make but one report as to both proceedings, we think the better practice is that the commissioners should make a separate report. Where they have refused to include both in one report, reserving the question in relation to the closed streets for a separate report, there is no reason suggested why the street opening report should be sent back and the proceeding delayed until the investigation as to the closed street is finished.
We have thus come to the conclusion that the Special Term correctly refused to interfere with the report of the commissioners in relation to the opening of East One Hundred and Sixty-eighth street, and it follows that the order appealed from should be affirmed, with ten dollars costs and- disbursements.
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; Laughlin, J., dissented,