Hyperlawhypertext legal database In re Mayor of New York 95 A.D. 533

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In re Mayor of New York

95 A.D. 533 Court N.Y. App. Div. English

Decision Majority — O’Brien, J.: · Dissent — Ingraham, J. (dissenting):

Contents

Majority

p. 533
In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Vanderbilt Avenue, West (Although Not Yet Named by Proper Authority), from East One Hundred and Seventy-third Street to Pelham Avenue, as the Same Has Been Heretofore Laid Out and Designated as a First-class Street or Road in the Twenty-fourth Ward of the City of New York. Elizabeth Ransford, Appellant; The City of New York, Respondent.

Headnote

Extinguishment of easements in streets in New York city —private as distinguished from public .easements—presumption as to the fling of a map by which the easements in the streets are discontinued — burden of proof as to the publication of a notice — presumption that a certificate was acknowledged — duty of a person in whose office public documents are fled to see that the requirements have been obeyed — Statute of Limitations applicable where compensation is sought for easements in a discontinued New York street.
A map of a street plan of a section of the city of Mew York, made under the Authority of section 673 of chapter 410 of the Laws of 1883, as amended by chapter 530 of the Laws of 1885 and also pursuant to chapter 731 of the Laws of 1887, if regularly made and filed, effectually extinguished the public easements in streets marked on the map as having been discontinued, but left alive the private easements of light, air and access appurtenant to the premises abutting upon such streets.
The extinguishment of such private easements was not authorized by proceedings under chapter 545 of the Laws of 1890, but might be effected by proceedings under chapter 1006 of the Laws of 1895. .
Where a map made under section 673 of chapter 410 of the Laws of 1883, as amended, has been filed in the proper office, it will be presumed that the legal steps preliminary to filing the map were duly taken.
It is, therefore, not incumbent upon the city to show that the notice required by the statute of 1887 was published as prescribed in such statute, but the burden of proving the contrary rests upon the party who attacks the regularity of the filing of the map upon that ground.
It will also be presumed that said section 673 of chapter 410 of the Laws of 1883, requiring the acknowledgment of the certificate of the president of the board of parks to accompany the map has been complied with. As the statute does not require the acknowledgment to appear upon the face of the map, the fact that it does not appear thereon and is not attached thereto does not overcome the
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presumption, as it may be that the acknowledgment was taken upon a separate piece of paper and filed at the same time with the map.
It is the duty of a person in charge of an office wherein public documents are filed or recorded, before filing or recording such a document, to see to it that compliance has been made with the legal requirements which entitle such document to be filed or recorded.
Section 5 of Chapter 1006 of the Laws of 1895 provides that where a street is discontinued'by virtue of a map filed under the provisions of that act, the claim for damages must be presented within six years' after the filing of such map, but that where such a map was filed before the passage of the act of 1895 the claim must be presented within two years after the passage of that act.
Edd, that where a map discontinuing a street was filed in 1890 under the provisions of section 672 of chapter 410 of the Laws of 1882, as aprended, and another map discontinuing the same street is filed in 1895 under chapter 1006 of the Laws of 1895, a proceeding by an owner of property abutting upon the discontinued street to recover damages for the loss of her public easements in the street must, as such easements were extinguished by the map filed in 1890, be commenced within two years after the passage of the act of 1895, but a proceeding by such property owner to recover damages for the loss of her private easements in the street may be commenced at any time within six years after the filing of the map under the act of 1895, as such easements were not affected by the filing of the previous map.
Ingraham, J., dissented.
. Appeal by Elizabeth Ransford from an order of the Supreme Court, made at the New Y ork Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1903, denying an application made by the appellant undér section 14 of chapter 1006 of the Laws of 1895.
The Special Term denied the petition of Elizabeth Ransford for an order to the commissioners of estimate and assessment, directing them, to ascertain and determine the compensation that should be made to her for closing Old Quarry road, or a part of East One Hundred and Seventy-eighth street, on which the petitioner’s property abutted.. The petition was filed by virtue of section 14 of chapter 1006 of the Laws of 1895, which, among other'things, provides that wheneyer proceedings are instituted to open any street laid out upon the permanent map of the city of New York, which shall be contiguous to or in the neighborhood of any lot fronting on any street which has been discontinued and closed, the court which has appointed commissioners of estimate and assessment in respect to such opening may, upon the application of any person, interested
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in the land fronting upon the street discontinued and closed, order and provide that the' commissioners shall ascertain and determine the compensation which should justly be made to such person for his damage by reason of the closing of such street.
The petitioner owns a plot of land 37 feet in width by 100 feet in depth, fronting on a street laid out on a map as Valentine avenue in the block bounded by East One Hundred and Seventy-ninth street on the north, East One Hundred and Seventy-eighth street on the south, Webster avenue on the west, and Vanderbilt avenue on the east, together with all rights of way, easements and privileges, public and private, in the said highway. Valentine avenue and Quarry road are the same street, the fee of which was never acquired by the city, nor was it owned by the petitioner, but is owned by some other person. Prior to 1893, however, it had been for forty years continuously in use as a public highway. The street substituted for the former Quarry road, or Valentine avenue, or East One Hundred and Seventy-eighth street, was also called East One Hundred and Seventy-eighth street on a map filed in 1890 and now retained on the final maps of the twenty-third and twenty-fourth wards. Pursuant to chapter 604 of the Laws of 1874, the commissioners of the department of public parks prepared and filed a map showing streets and roads in these wards in which the petitioner’s premises are situated. This map, dated April 17, 1878, was filed in the office of the register of New York county on February 28, 1879, where it is known as “ Filed Map No. 825.” On this map there is laid out a street designated as One Hundred and Seventy-eighth street, embracing that part of the old Valentine avenue or Quarry road which was in front of petitioner’s premises.
By chapter 721 of the Laws of 1887 the department of public parks was further authorized to change the location, width, course, etc., of any. street, avenue, road, etc., in the wards mentioned, the title to which shall not have been acquired by the mayor, aldermen and commonalty of the city, of New York, for the purposes of a public street, avenue, road, etc., and to discontinue and close any such street, avenue and road. Accordingly, on June 11, 1890, the department of public parks prepared and filed a map entitled “ Map or plan showing change of East 178th street from Vanderbilt Ave East to Webster Ave its extension to Burnside Ave and location of
p. 536
bridge across New York and Harlem Railroad in the 24th Ward of the City of New' York.” This map was signed by the topographical engineer of the department of public parks and was filed in the register’s office on June 12, 1890, in the office of the Secretary of State on June 13, 1890, and in the department of public parks on June 11, 1890.
On this map appears the following certification: “ I, Waldo Hutchins, President of the Board of Parks of the City of New York, do hereby certify that this is one of .three similar plans & profiles with explanatory remarks caused to be made by the ■ Commmissioners of the Dept. ,of Public Parks showing change of E. 178 St. from Vanderbilt Ave east to Webster Ave, its extension to Burnside Ave and location of Bridge over thé N. Y. & Harlem Railroad in the 24th Ward of the City of New York as established by said Commissioners under authority of chapter 721 of the Laws of 1887, which plans and profiles with' explanatory remarks are required to be made, certified and filed, and hereby are certified •in pursuance of chapter 410 of Laws of 1882.”
The purpose of this map was to discontinue and close that part of Valentine avenue or old Quarry road which was north of the northerly line of new East One Hundred and Seventy-eighth street; The street shown as One Hundred and Seventy-eighth street on the map of ■ 1890 was legally opened in 1893, and from that time,, according to the allegations of the moving papers, that portion of old Quarry road separating the petitioner’s premises from East One Hundred and Seventy-eighth street ceased to be a street or road in use.
On June 12, 1895, the Legislature enacted chapter 1006 of the Laws of 1895. The purpose of this act was to discontinue, and close streets in such a manner as to extinguish the easements of light, air and access which are appurtenant to abutting lots on public streets and which ordinarily survive the discontinuance or closing thereof. Section 5 of this act provides that- where a street is discontinued by virtue of a map tiled under the provisions of the act, the claim for damages-must be presented within six years after the filing of such map ; but where such a map was filed before the passage of the act of 1895,the. claim-must be presented within two years after,the passage of the act.
p. 537
The petitioner’s claim was presented more than two years, but within six years, after the passage of the act of 1895, and the Special Term decided upon the facts that the two years’ Statute of Limitations applied, and on the ground that the petitioner was too late in presenting her claim, denied her application, and from the order thus entered she appeals.
S. Livingston Samuels, for the appellant.
John P. Dunn, for the respondent.

The question presented on petitioner’s claim for damages iff* whether, under the provisions of chapter 1006 of the Laws of 1895, the two-year or the six-year Statute of Limitations is applicable. The appellant insists that map No. 171, filed on June 12, 1890, was-not a legal map, and, therefore, was ineffectual to discontinue old .Quarry road or Valentine avenue or a part of East One Hundred; and Seventy-eighth street. ,

This map was made under the authority of section 672 of chapter 410 of the Laws of 1882, as amended by chapter 530 of the Laws of 1885, and also pursuant to chapter 721 of the Laws of 1887. The two grounds upon which the petitioner’s claim of illegality are based-are, first, the failure of the city to show that the notice of publication which was necessary under chapter 721 of the Laws of 1887, was; published in the daily papers ; and, second, the failure to have upon the map, as provided by section 672 of chapter 410 of the Laws of 1882 (as amd. by Laws of 1885, chap. 530), a certificate made by the president of the park board or by another designated officer or commissioner before a person authorized by law to take acknowledgments of deeds.

It is conceded that if the map was properly filed in 1890, it effectually discontinued the street in question as a public street * but, under the decisions, there would still survive the private rights-of light, air and access which are appurtenant to a lot abutting upon-a public highway. (Holloway v. Southmayd, 139 N. Y. 390 ; Holloway v. Delano, Id. 412 ; Matter of Mayor, 28 App. Div. 143 .) These are authorities for the proposition that, prior to the passage of chapter 1006 of the Laws of 1895, the effect of the closing of á.

p. 538
street in the city of New York was that the public easement in the street was alone extinguished, and that the private easements of light, air and access therein of the owners of abutting land remained.

Chapter 545 of the Laws of 1890 did not authorize the extinguishment of these private easements, and the Legislature of 1895 evidently intended to supplement the law of 1:890 so as to enable the city to adopt a general and comprehensive scheme" for the permanent laying out and opening of new streets and discontinuing of old streets that interfered with such plan. Taking the two acts, therefore, of 1890 and 1895 they were sufficient, where their provisions were followed in closing old streets, to destroy both public rights and private easements of abutting owners.

Whether Quarry road or East One Hundred and Seventy-óighth street was discontinued as a public street necessarily depends upon a determination whether the map as filed in 1890 Was legally filed. That it was filed in the proper office is conceded; and with respect to the publication of the notice in the papers as required by chapter 721 of the Laws of 1887, we think that the burden of showing that the legal steps prescribed as preliminary to filing were not taken, would be on the one who assailed the legality and regularity of the filing, and that at the outset he would be met by the presumption in favor of the legality of the public map which had thus been filed and acted upon as a valid document. With respect, therefore, to the notice of publication, we think that the appellant is in error in saying that the burden rested upon the city to prove such publication.

In the recent case of City of New York v. Streeter ( 91 App. Div. 206 ), wherein an action was brought to recover a personal tax, and the question presented was the extent of proof on the part of the city necessary to establish a prima facie case, it was said: “With respect to the acts of judicial tribunals as well as those of constituted boards it has been frequently held that they will be regarded as presumptively valid until questioned or assailed under the maxim Omnia prcesumuntur legitime facta donee probetur ■in eontrarium. * * * In Wood v. Morehouse ( 45 N. Y. 368 ) the court says: ‘ Neglect of duty by a public officer will not be presumed but must be proved. * * * and in support of his acts the familiar maxim, orrmia prcesumuntur rite esse aeia, stands for

p. 539
evidence of the fact in the absence of any other evidence. When a person is required to do an act, the not doing of which would make him guilty of a criminal neglect of duty, it shall be intended that he has duly performed it unless the contrary be shown. Stdbit prmsumptio donee probetmr in conto'd/ri/amh * * * The defendant * * * rested * * * upon what he claims to be omissions of the plaintiff in furnishing in minutest detail proof of the successive steps that would end in duly imposing the tax upon the defendant. It will be seen, therefore, that there is no merit in the defendant’s position. * * * We deem it unnecessary to follow the appellant in the detailed argument as to the respects in which he thinks there was failure to prove regularity in the imposition of the tax such as proper publication and other minor details.”

And in City of New York v. Vanderveer ( 91 App. Div. 308 ), wherein also it was sought to enforce a personal tax, it was said: “ The requirement is that they (the tax books) shall be kept open and as the statute is silent with respect to the evidencing of such act * * * the legal presumption applies that the officers have performed their duty in this respect and that the burden, therefore, is cast upon the defendant to make it otherwise appear if such is the fact. (McLaughlin v. Miller, 124 N. Y. 510 ; Hand v. Supervisors of Columbia County 31 Hun, 531 ; Wood v. Terry, 4 Lans. 80 .) ”

The rule is thus stated in Chase v. Lord ( 77 N. Y. 1 ), wherein a provision of chapter 308 of the Laws of 1849, for the incorporation of insurance companies was under consideration: “Thelegal presumption is that all statutory conditions have been complied with. This presumption continues until the contrary is shown. No duty rested upon the stockholder to do this, and it is incumbent on the plaintiff to establish a non-compliance with the provisions of the statute before he can charge the defendant. (Bruce v. Driggs, 25 How. Pr. 71 .) ” These cases apply with equal force to the suggestion that it was incumbent on the city to prove, with respect to the filing of the map in 1890, due publication, because it appearing that the map was filed in the proper office, it will be presumed that the necessary preliminary steps have been taken by the proper officials.

The more serious question is that relating to the acknowledgment of the certificate which it is insisted should appear on the map. The

p. 540
map shown in the record is certified by W. Hutchins, president of the board of parks, but such certification upon the face of the map does not appear to have been acknowledged before an official entitled to take acknowledgment of deeds. There is nothing in section 672 of chapter 410 of the Laws of 1882 (as amd. by Laws of 1885 chap. 530) which requires the acknowledgment to appear upon the face of the map,, and it could, therefore, have been taken upon a separate piece of paper, and it is not improbable that this was done and the separate acknowledgment filed at the same time with the map. With respect to the filing of a map which requires to be acknowledged, justas with a deed, it is the duty of the recording officer, or the person in charge of the office wherein public documents are filed, to see to if that the legal requirements which entitle it to be filed have been complied with. And we do not think, from the mere fact that the acknowledgment does not appear upon the face of the map, that we would be justified in concluding that the department making and filing the map, or that the officers who accepted it for filing, failed to perform the duty devolving upon them of seeing to it^that the legal requirements were observed. Here, too, the presumption that officers upon whom the law imposed a duty performed it, may be invoked, and this presumption is not destroyed or rebutted by the fact that the acknowledgment does not appear upon the face of, or attached to, the map as printed in the record. In this connection we have, in addition to the authorities above referred to, the case of People ex rel. Kingsland v. Palmer ( 52 N. Y. 83 ), where certificates were given by commissioners for services rendered, and although one of the five commissioners had died and another had removed from the State, it was held that “ the three commissioners still in office having joined in the certificate, the presumption is that the act was regularly done and at a. meeting of all.” (Citing Downing v. Rugar, 21 Wend. 178 .)

In our view, therefore, the street in question, by the filing of the rnap in 1890, was closed and discontinued as a public street.

There remained, however, as held by the authorities which we have cited, the private easements which the petitioner had and enjoyed up to their final destruction by the filing of the map under the act óf 1895. As the damages which she suffered by the destruction of these private easements were due to the filing of the map

Dissent

p. 541
under the provisions of the statute of 1895, we do not see why she was not entitled to have the six years’ limitation apply to her claim, therefor. In other words, the private easements of the petitioner over the land, of the discontinued street were lost to her by the filing of the map of 1895 and not that of 1890. We think, therefore, that by the filing of the map in 1890 the petitioner lost only her public easements in the street which was discontinued as a highway. This being a damage suffered before the enactment of chapter 1006 of the Laws of 1895, was, under the provisions of section 5 of that act, barred in two years after the passage thereof. But her private easements of access over the soil of the discontinued street to the new street remained to her in the full enjoyment thereof. Of this right she was deprived by the filing of the map of December, 1895, which was filed under the provisions of said chapter 1006. This being a a new and additional damage caused to her by the filing of that map, she had, under the provisions of the said section 5, six years after the filing of the said map in which to present her claim and petition for compensation for the deprivation of those private easements.

To this extent we think the petitioner was entitled to relief; and for the reason that her petition was in all respects denied, we think that the order appealed from should be modified by denying the application so far as it relates to any damages which she lost by the discontinuance of the street as a public highway, but granting it as to damages which she may have sustained by the destruction of her private easements. As modified, the order should be affirmed, without costs.

McLaughlin, Hatch and Laughlin, JJ., concurred ; Ingraham, J., dissented.

I dissent so far as it is held that by chapter 1006 of the Laws of . 1895 the private easements appurtenant to the petitioner’s property over any portion of a street were destroyed, or that by reason of that act the petitioner can recover in this or any proceeding against the city any sum of money on account, of such private easemerits. These easements were appurtenant to the petitioner’s property and a part of it. The Legislature could not by a legislative act appro

p. 542
priate those private -easements without compensation; nor could the Legislature require that money- raised by taxation be applied to the purchase of a private easement owned by the petitioner for any purpose, except á public use. The result of allowing the petitioner in this proceeding to have the value of the private easement appurtenant to her property over the discontinued street assessed would be to impose a tax for the amount paid to her upon abutting property which would be taxing the abutting property for other than a public use. I dissent, therefore, from any modification of' this order and think it should be affirmed.

Order modified as directed in opinion, and as modified affirmed, without costs.

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