Smith v. Gagliardi

Appellate Division of the Supreme Court of New York

Smith v. Gagliardi

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 20, 1955

StatusPublished

Cited by6 cases

This text of 286 A.D. 873 (Smith v. Gagliardi) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Gagliardi, 286 A.D. 873, 142 N.Y.S.2d 36, 1955 N.Y. App. Div. LEXIS 4398 (N.Y. Ct. App. 1955).

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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.

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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.

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Bluebook (online)

286 A.D. 873, 142 N.Y.S.2d 36, 1955 N.Y. App. Div. LEXIS 4398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-gagliardi-nyappdiv-1955.

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