In re City of New York — 222 A.D. 644

Majority

p. 644

In the Matter of the Application of The City of New York Relative to Acquiring Title, etc., to the Station Building Situated on the South Side of Fordham Road, over the Tracks of the New York and Harlem Railroad Company, in the Borough of The Bronx, City of New York. New York and Harlem Railroad Company and Another, Appellants; City of New York, Respondent.

First Department,

March 2, 1928.

Headnote

Eminent domain — award — slight encroachment on abandoned public street does not require nominal award.

A substantial award should be made in proceedings by a city to condemn although the property taken encroaches slightly on an abandoned public street. It was error, therefore, to make a nominal award and the original substantial award is reinstated.

Appeal by the New York and Harlem Railroad Company and another from a final decree of the Supreme Court, entered in the office of the clerk of the county of Bronx on the 7th day of November, 1925.

Special proceeding instituted pursuant to chapter 643 of the Laws of 1917 (amdg. Laws of 1905, chap. 731) and under title 4 of chapter 17 of. the Greater New York Charter. (See Laws of 1901, chap. 466, § 995, added by Laws of 1915, chap. 606, as amd. by Laws oí 1917, chap. 259.)

p. 645

George H. Walker of counsel [Frederick L. Wheeler with him on the brief; Alexander S. Lyman, attorney], for the appellants.

Joel J. Squier of counsel [George P. Nicholson, Corporation Counsel], for the respondent.

We are of the opinion that the New York Central Railroad Company is entitled to compensation for the station building taken by the city. It was first held by the Special Term that an award for the sum of $28,400 should be made. Thereafter this award was reduced to the sum of $1, upon the theory that a part of the station building encroached on city property. The fact that a small portion of the structure may have been on an abandoned public street is not a sufficient ground for reducing the award. The railroad company is entitled to an award of $28,400 for the station building.

The order should, therefore, be modified by reinstating the award for the sum of $28,400, and as so modified affirmed, with costs to the appellants.

Present — Dowling, P. J., Merrell, McAvoy, Martin and Proskauer, JJ.

Order’ modified by reinstating the award for the sum of $28,400, and as so modified affirmed, with costs to the appellants. Settle order on notice.