Majority
p. 862In the Matter of the Application of The City of New York Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired for the Same Pur
p. 863pose in Fee, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening and Extending Surf Avenue, from West Fifth Street to West Thirty-seventh Street, in the Borough of Brooklyn, City of New York. The City of New York, Appellant; E. M. Realty Co., Inc., and Others, Respondents.
Final decree, in so far as appealed from, affirmed, with costs to respondents who have filed briefs on this appeal. No opinion. Young, Kapper, Scudder and Tompkins, JJ., concur; Lazansky, P. J., concurs except as to “ non-railroad parcels ” which were subject to easement that ten-foot strip be used for courtyard purposes, as to which he dissents. The “ railroad parcels ” were never burdened with that easement. It is conceded that the 1890 proceedings cast that burden on the “ non-railroad parcels.” Nothing in the record warrants the conclusion that they have been released therefrom. Even with the burden of such easements, the ten-foot strip may have substantial value and deprivation of it may give rise to consequential damages.