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In re opening Twenty-Ninth Street

1 Hill & Den. 189 Court N.Y. Sup. Ct. English

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p. 189
In the matter of opening Twenty-Ninth Street in the city of New-York from the East to the North river.

Headnote

Where D. owned four adjoining lots in the city of New-York and the land in front of them, the latter being designated on the commissioners’ map as part of the site of a street; and, before the street was opened, he sold three of the lots, bounding the purchasers respectively by the street, conveying to them also all his interest in the land within the street adjoining their several lots, subject to the úse Of the owners of the lots as a public street ■: Held, that his acts amounted to a dedication of the lands in the site of the street and to the extent of all the lots, to the public use; and therefore, upon the opening of the street, he was entitled to no more than nominal damages for the land taken therefor in front of the . fourth lot. ¡j
It seems, that such a dedication would embrace all D.’s land in the site of the street to the extent of the block where the lots sold are situated.
Quere, whether it would extend to all his lands in the site qf the street, however remote from the lots sold.
A motion to confirm the report of the commissioners of estimate and assessment, in the matter of opening streets in the city of New-York, cannot be opposed upon affidavits of parties in interest; e. g. persons *ho have been assessed for benefit.
K Emmett, for the corporation, moved the confirmation of the report of the commissioners of éstimate aiid assessment, in the matter of opening Twenty-ninth street from the East to the North river.
p. 190
Mr. Delaplaine, on behalf pf John F. Delaplaine, opposed the motion. The facts, as they were admitted on the argument, were as follows: Mr. Delaplaine owned four adjoining lots on the southerly side of the street, and most of the land in the street in front of those lots. In 1833 he sold and conveyed three of the lots, bounding the purchasers by the street. He also conveyed to the purchasers all his interest in the land in the street adjoining the three lots—the land to be subject to the use of the owners of the lots as a public street. He remained the owner of the fourth lot, and the land in the street in front of it. For the land in the street opposite this lot the commissioners allowed him $79,48, which is less than its value, and on that ground Mr. Delaplaine objects to the report.
W. Hunt opposed the motion for confirmation, on behalf of Abel T. Anderson and Isaac Johnson—who have been assessed for benefits—on several grounds: but there was no proof of the facts on which they relied beyond their own affidavit, that “ in their opinion the objections are true in substance and matter of fact.”
Emmett insisted, that, being parties in interest, their affidavit was not admissible. (John and Cherry streets, 19 Wendell, 659.)

There is nothing in the case of Mr. Delaplaine to distinguish it, in principle, from other cases which have been before the court. (Thirty-second street, 19 Wend. 128 , and cases there cited.) Having sold lots and bounded the purchasers by the street as it, is laid down on the city map, he has adopted the map, and. dedicated his land in the site of the street to the public use.. He could have intended nothing less by his deeds than a declaration, that Twenty-ninth street was, and, so far as he was concerned, shpuld remain a public highway. I do not say that this dedication will extend to all his lands in the site of the street, however remote from the lots sold:

p. 191
but it will, I think, extend to all his lands in the same block— ' ' 4 or in other words, to the next cross street or avenue on each side of the lots sold. The parties must have contemplated an outlet both ways.

Why the commissioners allowed Mr. Delaplaine more than a nominal sum, without giving him the full value of the land, does not appear: but he cannot complain that he has got too much.

In relation to Messrs. Anderson and Johnson the objection is taken, and must prevail, that there is no legal evidence of the facts on which they rely in resisting the motion for confirmation. They are parties in interest, and not competent witnesses in their own favor. (John and Cherry streets, 19 Wendell, 659.) The questions of law which their counsel wished to have considered, are not, therefore, properly before us.

Motion granted.

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