Smith v. Gagliardi

286 A.D. 873, 142 N.Y.S.2d 36, 1955 N.Y. App. Div. LEXIS 4398

Opinion

Order denying an application pursuant to article 78 to review a determination of the board of trustees of the village of Larehmont discontinuing ten feet of a public street at its easterly terminus reversed on the law and the facts, without costs, and matter remitted to Special Term for trial pursuant to sections 1295 and 1296 of the Civil Practice Act on the issues presented by the pleadings and accompanying papers. Woodland Avenue is not the exclusive property of the village and its residents (People v. Kerr, 27 N. T. 188, 212, 213); it is impressed with a trust for use by all of the public (City of New York v. Bice, 198 N. V. 124,128; Matter of Green V. Miller, 249 N. V. 88, 93; Town of Galen v. Clyde & Bose Plank Boad Co., 27 Barb. 543, 551). The property of the petitioner adjoins Woodland Avenue and this access is a property right (Fearing v. Irwin, 55 N. T. 486, 490; Egerer v. New York Central & Hudson Biv. B. B. Co., 130 N. T. 108) of which petitioner cannot be deprived without compensation unless there is available a suitable alternative means of access to a public highway (Holmes v. State of New York, 279 App. Div. 489, 491). In conjunction with the conceded proof, questions of fact exist as to a rock formation preventing access from the northerly portion of petitioner’s property to Palmer Avenue, and petitioner’s assertion that the transcript of the record submitted by the board is incomplete. Nolan, P. J., MacCrate, Beldock, Murphy and Ughetta, JJ., concur.