In re Mayor

By an order of the supreme court, made under the authority of an act of the legislature of the state of New York, known as “Chapter 152 of the Laws of 1894,” commissioners were appointed to ascertain and appraise the compensation to be made to the owners and all persons interested in real estate appropriated or designated by such act as and for a part or extension of the Riverside Park in the city of New York, and for public docks, wharves, or commercial purposes. The commissioners so appointed entered upon the performance of their duties, and on or about the 21st of December, 1898, made their first separate report, in and by which they awarded certain sums as damages to persons whose property was taken or affected by the improvement; among such being the Standard Gaslight Company, Euphemia S. Coffin, Thomas Smith, John D. Crimmins, and Thomas E. Crimmins, the present appellants. The commissioners reported that in making their' awards they proceeded upon the theory that the lands were appropriated by the city as of the date on which the act of the legislature above mentioned went into effect. In fixing their awards they made no allowance to property owners for interest upon the sums awarded, or for taxes or assessments affecting the properties taken, and placed upon them after the passage of the act. A motion to confirm the report having-been made by the city of New York, exceptions taken by the property owners above named were argued. Those exceptions were overruled, and the report of the commissioners was confirmed, and from the order of confirmation their appeals are taken.

All of the appellants excepted to the refusal of the commissioners to allow, in enhancement of the awards, interest upon the values as fixed by such commissioners, and to the refusal to allow taxes imposed upon the properties from ihe date of the passage of the act. It is conceded by the city tba1 the appropriation in the hands of the municipality was as of the date of the passage of the act. It is insisted, however, that the commissioners were right in their refusal to allow either interest or taxes. The point is not open to further discussion in this court. It was settled by what was decided in Re Mayor, etc., of City of New York, 40 App. Div. 281 , 58 N. Y. Supp. 58 , in which the rule relating to the allowance of interest and taxes in cases of this character and the reasons of the rule are fully stated in the opinion of the court, written by Mr. Justice Barrett. The order of confirmation in the present proceeding was made by the learned justice at special term before the decision in Re Mayor, etc., of City of New York, supra, was announced. He considered that he was concluded by the decision of the general term in the First department (In re Public Parks, 53 Hun, 280 , 6 N. Y. Supp. 750 ) in a case to which he refers to as precisely like the one at bar. In Re Mayor, etc., of City of New York, supra, a distinction is pointed out between that case and the one upon which the learned judge at the special term relied, and that same distinction is to be made in this case, namely, in Re Public Parks interest and taxes were not allowed for the specific reason that there had been a use of the property, which the court deemed an equivalent; while here that feature does not appear. There was another feature in Re Public Parks, supra, namely, that

There remains for consideration an exception taken by the appellants Crimmins. They claimed before the commissioners that they were entitled to compensation for the taking of property in addition to that for which an award was made them, or for the destruction of easements appurtenant to property. The parcel of land owned by them, for the taking of which an award was made, extends from Ninety-Sixth street to Ninety-Seventh street and from Twelfth avenue on the east to a point extending 100 feet into the river as far as the bulkhead line of 1857. It is a plot 100 feet in depth by 201 feet 10 inches in width. A bulkhead was built on the western boundary of the land. Their claim to additional compensation' is not formulated in express terms, but in substance it is that they have a right of wharfage and cranage at an exterior line of the city at a point 700 feet to the westward of their present bulkhead line, and in consequence some property right or interest in the land under water between that bulkhead line and the so-called exterior line mentioned. That claimed exterior line is drawn at what was at one time a projected avenue called “Thirteenth Avenue,” and the claim of the Messrs. Crimmins is founded upon a grant made by the city to their predecessor in title. It appears that on the 27th of December, 1865, the mayor, aldermen, and commonalty of the city of New York made a grant of certain lands, including that above described, to one Pater B. Amory, an upland owner. The property thus granted, and of which a conveyance was made by the city in February, -1871, is described as beginning at the point of intersection of the original line of high water of the Hudson river and the center line of Ninety-Seventh street; thence westerly along the center line of Ninety-

“The parties of the first part, for themselves, their successors and assigns, do covenant and agree to and with the party of the second part, his heirs and assigns, that he * * * shall and lawfully may from time to time and at all times hereafter fully have and enjoy, take and receive, and hold to his and their own proper use, all manner of wharfage, cranage, advantages, or emoluments growing or accruing by or from that part of the exterior line of the said city lying on the westerly side of the hereby-granted premises fronting on the Hudson river, with full power to collect and receive the same for his and their own use and benefit forever [with an exception not material].”

The argument made on behalf of the Messrs. Crimmins is that at the time this grant was made the title of the city, by virtue of its charters and various acts of the legislature of the state of New York, extended 700 feet beyond the present bulkhead line, the intervening space being land under water; that by an act of the legislature passed in 1837 (chapter 182) it was provided that Thirteenth avenue, as laid out on a map therein referred to, should be the permanent exterior street or avenue in the city of New York along the easterly shore of the North or Hudson river, between the southerly line of Hammond street and the northerly line of 135th street. The inference is drawn that, the city owning land under water to an exterior line at Thirteenth avenue, and having granted to Amory the right to wharfage and cranage growing or accruing by or from that part of the exterior line of the city lying on the westerly side of the premises granted to Amory, that grant necessarily carried with it easements and property rights over the intervening land under water between the bulkhead line as it at present exists and an established exterior line at Thirteenth avenue. The Messrs. Crimmins are the grantees of Amory, and would have the same rights that he had. If the act of 1837, establishing the projected avenue, was operative at the time the grant was made to Amory, and the city of New York had the right to build out docks or piers to that exterior line of the projected Thirteenth avenue, such right would doubtless have passed to its grantee, Amory, but its grant to him, when referring to the exterior line of the city, must be construed with respect to the power and authority of the city of New York to make grants; and the exterior line of the city mentioned in the grant to Amory must be that exterior line up to which the city had the right to construct wharves or piers or bulkheads at the time that grant was made. Whatever may have been meant by the exterior line of the city prior to 1857, in that year another exterior line was adopted. It was adopted, as Judge Finch says in Williams v. Mayor, etc., of City of New York, 105 N. Y. 429 , 11 N. E. 829 , in consequence of a new agreement both in fact and in legal effect made between the state and the city. That

The exceptions of the several appellants must be sustained to the extent above indicated. The order appealed from is therefore reversed, and the report sent back for such further proceedings as may be necessary to conform to the views above expressed. All concur.