In re the Mayor of New York — 139 A.D. 69

Majority

p. 69

In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, etc., for the Opening of Grote Street from One Hundred and Eighty-second Street to Southern Boulevard. On Petition of Margaret M. Gleason, Appellant. The City of New York and Others, Respondents.

First Department,

June 10, 1910.

Headnote

New York city — street closing—filing claim for compensation.

Where the owner of real property in New York city who seeks- to recover damages for the closing of a street fails to present a claim for compensation to the city comptroller within six years after the filing of a map closing the street, as provided by section 5, chapter 1006, Laws of 1895, she is barred from claiming compensation.

The owner cannot take advantage of claims filed within the statutory period by her grantee or those claiming under him, where they did not file them as her agents or in her behalf.

It seems, that one to whom the property was conveyed after the closing of the street cannot recover compensation therefor.

Apreal by the petitioner, Margaret M. Gleason, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of March, 1910.

Merle I. St. John, for the appellant.

Joel J. Squier, for the respondent city of New York

p. 70

Clarence C. Ferris, for the respondent Hookey.

Joseph A. Flannery, for the respondents Dowd and Worthen.

This is an appeal by Margaret M. Gleason from an order denying her motion that the commissioners of estimate and assessment appointed in this proceeding be authorized to ascertain and determine the compensation which should be made to her by reason of the discontinuance and closing of Kingsbridge road between Prospect avenue and Southern boulevard.

It. appears that on November 2, 1895, the commissioner of street improvements of .tlietwenty-third and twenty-fourth wards of the city of New-York caused to be filed certain legally adopted and approved maps, showing the lines and grades of streets and avenues, which maps were thereafter in all' respects ratified, confirmed and approved by .chapter 712 of the Laws of 1896. Hpon these maps Kingsbridge road, from Prospect avenue to Southern boulevard, was shown, as discontinued. The Southern boulevard, an old and traveled street, was continued. On said November 2, 1895, the appellant was the owner of a piece or parcel of land fronting on said Kingsbridge road. Being the owner of the lot at' the time the street was legally closed, she was entitled to such damage as might result to her property in consequence of such closing, providing she-took the necessary steps to assert her claim. This she failed to do. Section 5 of chapter 1006 of the Laws of 1895, providing for the ascertainment of damages suffered by reason of the closing of streets, requires that, a. person claiming to have been damaged must,' within six years' after the filing of a map closing a street, present to the chief financial officer or comptroller of the city a written statement or claim for compensation, failing which lie is “ forever barred from claiming compensation for such closing or discontinuance.” The appellant did not file such a claim within six years, and is, therefore, barred to now claim compensation. (Matter of Mayor, etc. [Walton Ave.], 131 App. Div. 714 ; affd., 197 N. Y. 518 .) Some time after the closing of .the street appellant conveyed the property to one Dowd, and he, or those claiming nnder him, did file claims within the statutory period. The appellant, however, cannot take any advantage from these claims, for

p. 71

they were not asserted in her right, but in antagonism to any elaim by her. Nor can . she now claim to. ratify them and thus gain an advantage from them, because those who filed them did not do so as her agents or in her behalf. It is not apparent ■ how any one claiming under appellant by a deed subsequent to the closing of the street can successfully assert a claim to damages done to the property while in appellant’s ownership, but that question, although argued on some of the briefs, is not involved in this appeal.

The order should be affirmed, with ten dollars costs and disbursements, to the respondent The City of New York.

Ingraham, P. J., Lahghlin, Clarke and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements to the respondent The City of New York.

Cases cited

In re the Mayor of New York 197 N. Y. 518 N.Y. 1909-12-07 p. 70