In re Grote St. — 123 N.Y.S. 619

Majority

p. 619

In re GROTE ST. IN CITY OF NEW YORK.

(Supreme Court, Appellate Division, First Department.

June 10, 1910.)

Headnote

Municipal Corporations (§ 404^[2] )—Closing Streets—Damages to Property Owners—Claims—Time.

Laws 1895, c. 1006, § 5, provides Cor the assessment of damages to property owners suffered by reason of the closing of streets, and declares that if the claimant does not present a written statement or claim for compensation within six years after filing of a map closing a street he shall be forever barred from claiming compensation therefor. Held, that, where claimant failed to file a claim for compensation by reason of the closing of a street within the time specified, her right to compensation was barred, though some time after the street was closed she conveyed the

p. 620

property to another, who filed claim within the statutory period, not in her right, but in antagonism to her; she not being entitled to any rights under claims so filed.

_[Ecl. Note.—For other eases, see Municipal Corporations, Cent. Dig. §■ 991; Dec. Dig. § 404.^[2] ]

Appeal from Special Term, New York County.

In the matter of the improvement of Grote Street in the City of New York. From an order denying the motion of Margaret M. Gleason that commissioners of estimate and assessment be directed to fix compensation for damages sustained by her by the closing of the Kings-bridge Road from Prospect Avenue to Southern Boulevard, she appeals.

Affirmed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-LIN, CLARKE, SCOTT, DOWLING, and MILLER, JJ.

Merle I. St. John, for appellant.

Joel J. Squier, for respondent City of New York.

Clarence C. Ferris, for respondent Hookey.

Joseph A. Flannery, for respondents Dowd and others.

This is an appeal by Margaret M. Gleason from an. order denying her motion that the commissioners of estimate and assessment appointed in this proceeding be authorized to ascertain and determine the compensation which should be made to her by reason of the discontinuance and closing of Kingsbridge Road between Prospect Avenue and Southern Boulevard.

It appears that on November 2, 1895, the commissioner of street improvement of the Twenty-Third and Twenty-Fourth wards of the city of New York caused to be filed certain legally adopted and approved maps showing the lines and grades of streets and avenues, which maps were thereafter in all respects ratified, confirmed, and approved by chapter 712 of the Laws of 1896. Upon these maps Kingsbridge Road, from Prospect Avenue to Southern Boulevard, was shown as-discontinued. The Southern Boulevard, an old and traveled street, was éontinued. On said November 2, 1895, the appellant was the-owner of a piece or parcel of land fronting on said Kingsbridge Road. Being the owner of the lot at the time the street was legally dosed, she was entitled to such damage as might result to her property in consequence of such closing, providing she took the necessary steps to-assert her claim. This she failed to do.

Section 5, c. 1006, Laws 1895, providing for the ascertainment of damages suffered by reason of the closing of streets, requires that a person claiming to have been damaged must within six years after the filing of a map closing a street present to the chief financial officer or comptroller of the city a written statement or claim for compensation,, failing which he is “forever barred from claiming compensation for such closing or discontinuance.” The appellant did not file such a claim within six years, and is therefore barred to now claim compensation. Matter of the Mayor, etc., Walton Ave., 131 App. Div. 714 , 116 N. Y. Supp. 471 , affirmed 90 N.

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those claiming under him, did file claims within the statutory period. The appellant, however, cannot take any advantage from these claims, for they were not asserted in her right, but in antagonism to any claim by her. Nor can she now claim to ratify them, and thus gain an advantage from them, because those who filed them did not do so as her agents or in her behalf. It is not apparent how any one claiming under appellant by a deed subsequent to the closing of the street can successfully assert a claim to damages done to the property while in appellant’s ownership; but that question, although argued on some of the briefs, is not involved in this appeal.

Order affirmed, with $10 costs and disbursements to the respondent the city of New York. All concur.