In re the Mayor of New York — 141 A.D. 623

Majority

p. 623

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 Purpose of Opening East One Hundred and Seventy-second Street, etc., from Jerome Avenue to Morris Avenue, etc., in the Twenty-fourth Ward of the City of New York. In the Matter of the Applications for Damages to Lots Nos. 24, 25, 26 and 28, in Block 2821, Caused by the Abandonment, etc., of Fourth (Belmont Street) Avenue, between Grand Boulevard and Concourse and the Boundary Line of the Village of Mount Eden. In the Matter of the Application for Damages to Lot No. 28, in Block No. 1198, Caused by the Abandonment, etc., of Eighth Avenue and Walnut Street, between Jerome Avenue, Townsend Avenue and East One Hundred and Seventy-second Street. The City of New York, Appellant; August Ellinghaus and Others, Respondents.

First Department,

December 16, 1910.

Headnote

Municipal corporations — street opening, city of New York—date of damage.

Commissioners of estimate and assessment in a street opening in the city of New York should assess the damage not as of the day when the title to the first ■ street bounding the block vested in the city, but should fix it as of the date when such street was actually opened for public use. ‘

■Appeal.by .The City of New-York from an order of the Supreme Court, made at the New York Special Term and entered in the

p. 624

office of the clerk of the county of New York on the 25th day of May, 1907, confirming the report of commissioners of estimate and assessment herein.

Jobl J. Squier, for the appellant.

Benjamin Trapnell, for the respondents.

The commissioners of estimate and assessment fixed the damage as of February 20, 1897, which was the day that the title to the first street bounding the block, viz., the Grand. Boulevard and Concourse, vested in the city, when they should have fixed it as of the date when the first street bounding the block ivas-actually opened for public use. (Matter of Mayor, etc. [Walton Avenue], 131 App. Div. 696 ; affd., 197 N. Y. 518 .)

The record before us does not show when the first street bounding the block was actually opened for public use; that fact should have been ascertained and the damages fixed as of that date.

The order appealed from, therefore, is reversed and the report returned to the commissioners of estimate and assessment for amendment and correction as above indicated, without costs.

Present ■— Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, J J.

Order reversed, without- costs, and report remitted to commissioners as stated in opinion. Settle order-on notice.

Cases cited

In re the Mayor of New York 197 N. Y. 518 N.Y. 1909-12-07 p. 624