In re the New York & Harlem Railroad

46 N.Y. Sup. Ct. 338

• Court: New York Supreme Court
• Decided: January 15, 1886
• Status: Published

Opinion

Brady, J.:

The Fourth avenue was opened from Thirty-eighth street to One Hundred and Twenty-fifth street by various commissions, beginning in 1853, and the property owners fronting upon it were assessed for the extension. The New York and Harlem Railroad Company were incorporated pursuant to chapter 263 of the Laws of 1831, and the several acts amendatory thereof, and by chapter 261 of the Laws of 1884 the company was authorized to enlarge their passenger depot by extending it easterly to a line parallel with the then existing easterly line of the Fourth avenue and eighty feet easterly therefrom, extending from the northerly line of Forty-second street to the southerly line of Forty-fifth street. The land which the company were thus authorized to acquire embraced portions of the blocks of land between Forty-second and Forty-fifth streets and the easterly portion of Fourth avenue between those streets, and portions of Forty-third and Forty-fourth streets. Section 5 of the act of 1884, already mentioned, provided that nothing should be so construed as to allow the company to take any part of the street belonging to the city without compensation, to be ascertained as provided by the first séction of the act, and the commissioners appointed were directed to appraise the value of the strip of land to be acquired for a new street, and to award the value thereof toward the payment for lands taken which then formed a portion of the public streets. Under this act proceedings were had, and a petition was presented in reference to the loeus in quo already described.

Mr. Buckley appeared to oppose, and an affidavit was read on his behalf to the effect that he was the owner of a lot on Fourth avenue eighty-five feet five inches northerly from Fifty-third street,' and that he was informed and believed that the lot owned by him was assessed for the opening of Fourth avenue from Thirty-eighth street to One Hundred and Thirty-fifth street, confirmed in 18S3. But it does not appear that an assessment, if any were levied, was paid by him, or that he was the owner of the lot at the time that assessment was levied.

An affidavit was also read by Arthur Berry on behalf of the corporation, showing that proceedings by commissioners for opening the avenue were confirmed in 1853, and subsequently, and that property owners representing thousands of lots were assessed for the expense thereof, between Thirty-eighth street and One Hundred and Thirty fifth street, and that Forty-third, Forty-fourth and Forty-fifth streets were opened from the East river to the Hudson river in the years 1837 and 1838 ; that property owners representing over two thousand lots fronting on the streets were assessed for the openings; and further, that none of the property owners had been made parties to this proceeding, or had been served with notice of it.

Notwithstanding the opposition thus made commissioners were appointed. From the order expressing that result an appeal was taken by the counsel to the corporation and also by Mr. Buckley. Jt is asserted in the brief of the respondent, however, as affecting its appeal, and it was not gainsaid upon the argument, that after the commissioners were appointed proceedings were had before them, in which the corporation was represented and awards miffie to it, and also that their report was confirmed on notice to the city, and the award made to it paid to and accepted by it.

There can be no doubt that, under the act of 18.13 (cliaji. 86), the fee of the land forming the Fourth avenue, apart of which the company sought to obtain, was, by the ceremony of laying out the street, vested in the city. Mr. Buckley, though an abutting owner on the avenue, was not of that part of it which was desired by the company, and for the acquisition of which the commissioners were appointed. His premises fronting on the avenue were some distance north of the locus in quo. The only interest he had in it, therefore, entitled to any consideration in this proceeding, is suggested by his counsel, namely, that the avenue upon which he is an abutting owner “ should be kept open for a street, and used only for street purposes.” If he were an abutting owner along the line of the part of the street taken, he would no doubt be entitled to compensation for any damage which the change of the avenue in front of him might occasion; and to this extent the authorities cited by his counsel would justify the proposition which he asserts in that regard. But, as already said, he is not an abutting owner of the locus in quo, and it is not understood, therefore, that he was entitled to any notice of this proceeding. The fee being vested in the city, of the part of the street which was appropriated for the enlargement of the company’s depot, the corporation was entitled to notice as such owner, which was properly given in that respect, and, as appears, the city was not only given but received a compensation for that part of the street which was obtained by the company. No other owner, if any there be having the right to do so, appears to object. The proceedings seem to have been in accord with the act of 1884 (supra) therefor.

The city has no standing upon this appeal, however, for the reason that it has received the compensation made in the proceedings taken for the purpose of acquiring the land appropriated, and Mr. Buckley, the other appellant, not being an abutting owner as to the locus in quo, as already stated, has no interest other than in the continued use of the whole street an interest in common with the citizens of the city of New York, and for the interference, or supposed interference, with which he is not entitled to any compensation. The corporation represented his interest in such proceedings.

For these reasons the order should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.