May v. City of Brooklyn — 44 N.Y. St. Rep. 368

Majority

p. 368

Solomon May, Pl’ff, v. The City of Brooklyn, Def't.

(City Court of Brooklyn, Special Term,

Filed January 6, 1892.)

Headnote

Municipal cokfobations—Negligence—Dedication of highway.

Lands formerly in the town of New Lot's were sold to plaintiff and others with reference to a-map on which they appeared hounded hy a street, some of which were purchased by defendant, which for convenience closed said street and opened another fifty feet distant, which was used by the public for over twenty years. Held, that as between plaintiff and the city it was a highway, and that defendant was liable for injuries caused hy material left therein by its employees.

p. 369

Action for injuries alleged to have been caused by defendant’s-negligence.

Ira L. Bamberger, for pl’ff; Almet F. JenJcs, for def’t

The plaintiff proved on the trial of this-case that on December 19, 1889, the employees of the defendant negligently placed upon Dinsmote place, in the twenty-sixth ward of this city, a number of large iron pipes, and left them there-without any warning to travelers, and that, on the following day, one Asher May, while driving the horse and wagon of the plaintiff in said place, and in his employ, without carelessness on his-part, struck the wheels of the wagon against the pipe in the street, and the plaintiff was damaged thereby. It is contended by the counsel for the defendant that Dinsmore place was not a public street at that time. On this point, the plaintiff proved that the-place had been used by the public for over twenty-five years, and that the same is laid out on the map made by the town survey commission, appointed pursuant to chapter 670 of the Laws of 1869.

In the case of Speir v. New Utrecht, 121 N. Y., 420 ; 31 St. Rep., 414 , the court of appeals decided that a private lane does-not become a public highway although the public are allowed to-use it for a period of over twenty years. There must be a dedication, a use and an acceptance, or an act from which an acceptance can be implied. The plaintiff also proved that in 1835 the farm which includes the property occupied by the plaintiff and that owned by the city was mapped, and that, on the map, Fourth street was laid out about fifty feet south of the land now known as Dinsmore place. Lots were sold by the map, and reference-made thereto in the deeds, and between 1858 and 1862 the city of Brooklyn purchased a number of lots located on said map, and for convenience closed Fourth street and opened Dinsmore place-as a. substitute.

It is clear that the owners or tenants of land included in said map had a right of way over the entire width of Dinsmore place, and it may be argued that the city, if it dedicates its own property as a way, cannot afterwards say-that it did not accept such dedication. If proceedings had been taken to open Dinsmoreplace before the annexation of New Lots, the city would have been entitled to an award of only nominal damages. In re Public Parks, 25 St. Rep., 231 . I very much doubt if any proceedings could be taken, since the annexation, to open the street, or so much of it as is owned by the city in fee. The party making the dedication and the party to accept it are now the same.

It is not necessary to decide the point before stated, for whether or not Dinsmore place was a city street is immaterial. It was a. highway as between the plaintiff and the city, and the corporation is liable under the case of Brusso v. The City of Buffalo, 90 N. Y., 679 . See also Schade v. Albany, 16 N. Y. Supp., 262 .

■ Judgment for plaintiff for $300 damages and costs. Findings to be settled on two days notice.