In re Exterior St., Borough of Bronx, City of New York

• Decision Date: 25 May 1944
• Citation: 293 N.Y. 1,55 N.E.2d 841
• Parties: In re EXTERIOR STREET, BOROUGH OF BRONX, CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

293 N.Y. 1

55 N.E.2d 841

In re EXTERIOR STREET, BOROUGH OF BRONX, CITY OF NEW YORK.

Court of Appeals of New York.

May 25, 1944.

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the application of the City of New York, relative to acquiring title to the realty required for the opening and extending of Exterior Street and other streets in the Borough of the Bronx, City of New York. From an order of the Appellate Division of the Supreme Court in the First Judicial Department, 265 App.Div. 347, 38 N.Y.S.2d 471, which affirmed an order of a Special Term of the Supreme Court, Bronx County, McLoughlin, J., denying a motion by the Bowery Savings Bank, appearing specially, to vacate and set aside, as to it, a final decree and all other proceedings in the condemnation proceeding in so far as decree and proceedings related to damage parcel 381, which motion was opposed by Stephens Fuel Company, Inc., the Bowery Savings Bank appeals by permission. The following questions were certified: ‘1. Did the court at Special Term have jurisdiction to amend the damage maps in this proceeding so as to include Damage Parcel No. 381 without giving the notice provided for in Section 994 of the Greater New York Charter? 2. Were the proceedings taken herein sufficient to apprise appellant that its property was to be taken? 3. Did the court at Special Term have jurisdiction over appellant?’

Affirmed, and each certified question answered in the affirmative.

CONWAY and LOUGHRAN, JJ., dissenting. Richard T. Herrmann, Curtis S. Bates, and Henry F. Richardson, Jr., all of New York City, for appellant, appearing specially.

Ignatius M. Wilkinson, Corp. Counsel, of New York City (Eugene L. Brisach, Julius Isaacs, and Leo Brown, all of New York City, of counsel), for respondent.

LEWIS, Judge.

The appellant, The Bowery Savings Bank, a mortgagee of premises presently to be described, challenges procedure by which the City of New York acquired certain real property for the widening of East 135th Street in connection with the construction of the westerly approach to the Triborough Bridge. The condemnation involved easements possessed by the owners of lands, outside the lines of taking, which abut upon the Mott Haven Canal. See Matter of City of New York, Exterior St., Borough of Bronx, 285 N.Y. 455, 457, 35 N.E.2d 39. An award for consequential damages was paid to Stephens Fuel Co., Inc., the owner in fee of damage parcel No. 381, upon its representation that the property was free of all encumbrances. It now appears, however, that the appellant held several mortgages on that parcel but filed no notice of claim in the condemnation proceeding captioned above.

More than two years after payment of the awards the appellant, appearing ‘specially’ in this proceeding, moved at Special Term to set aside the final decree in condemnation upon the ground that the court had acquired no jurisdiction in this proceeding over damage parcel No. 381 or over the appellant as mortgagee. Special Term denied the motion upon the ground that there was no fraud or mistake in making the award which would justify vacating the decree. The Appellate Division affirmed the order, one Justice dissenting, and granted leave to appeal to this court upon the following certified questions: ‘1. Did the Court at Special Term have jurisdiction to amend the damage maps in this proceeding so as to include Damage Parcel No. 381 without givingthe notice provided for in Section 994 of the Greater New York Charter? 2. Were the proceedings taken herein sufficient to apprise appellant that its property was to be taken? 3. Did the Court at Special Term have jurisdiction over appellant?’

Additional facts are as follows: On October 20, 1936, the Board of Estimate and Apportionment adopted a resolution which authorized the taking in fee of property required for an extension and widening of East 135th Street. The rule map approved by the Board included premises designated as ‘Parcel F’, a strip of land on the northerly side of East 135th Street through which passed Mott Haven Canal. The proceeding was instituted on notice published in the City Record as provided by sections 999 and 1000 of the Greater New York Charter, which notice described by metes and bounds the property to be taken, including ‘Parcel F.’ The published notice also directed every person interested in the property to be taken to file a claim therefor and proof of title. Thereafter in due course and upon authority of a resolution of the board of Estimate, the Corporation Counsel applied for an order of condemnation which was granted on November 4, 1936, on which date title to the property described in the condemnation notice vested in the City. A draft damage map was then prepared by the president of the Borough of Bronx and thereafter the appellant filed a notice of appearance as owner of damage parcel No. 147 a parcel separate and unrelated to parcel No. 381 upon which it held mortgages. Thereafter it participated actively in the proceeding and received an award for parcel No. 147.

During the course of the condemnation trial several owners of parcels of real property along Mott Haven Canal and not within the lines of taking including the owner of Parcel No. 381 applied for leave to file claims in the proceeding. Such applications were based on the alleged fact that the acquisition of title in fee of damage parcel F, which included a segment of the Mott Haven Canal, and the filling in of the canal prism at that location would extinguish their easements in the Canal. The application was granted and the court directed that damage numbers be assigned to such owners along the Mott Haven Canal whose easements would be cut off by the taking. The damage numbers thus assigned included the Parcel No. 381 owned by Stephens Fuel Co., Inc., as to which property the appellant was a mortgagee.

A tentative decree included awards to Stephens Fuel Co., Inc., as owner of damage Parcel No. 381 and to the appellant as owner of the separate damage Parcel No. 147. Notice to file objections to the tentative awards was published in the City Record as provided by the Greater New York Charter and thereafter a final decree in condemnation was entered.

Upon the appellant's present motion to vacate the final decree in condemnation it appears that Stephens Fuel Co., Inc., filed with the Corporation Counsel proof of title of its premises in connection with its claim for consequential damages; that such claim included a verified statement by one of its executive officers ‘That said lands (Parcel No. 381) are free and clear of all mortgages * * *’; that upon receiving payment of the award an executive officer of Stephens Fuel Co., Inc., signed a verified receipt therefor and a release, which instrument contained the statement ‘There are no mortgages or liens of any description against the said premises'; that in truth the appellant was then the owner of several mortgages which were liens upon land comprised within Parcel No. 381. It also appears by an affidavit of the executive officers who filed the verified proof of title for the corporate owner of Parcel No. 381 and the verified receipt and release at the time the award was paid, that at the times of filing such instruments they knew there were mortgages upon the lands described in the instruments but were informed by counsel and believed that no land subject to the mortgage liens was being acquired by the City of New York in the condemnation proceeding.

The question for our decision is whether the notice of condemnation, which failed specifically to describe damage Parcel No. 381 as included in the taking, was adequate.

The appellant argues that the condemnation proceeding as originally instituted gave inadequate notice that easements appurtenant to property abutting upon Mott Haven Canal outside the line of taking would be affected. It asserts that a description showing a taking in fee of Parcel F, which includeda strip of land through which Mott Haven Canal passes, would give no indication that a bridge at that location and within the line of taking was to be discontinued and that the canal prism was to be filled at that point. A statute is cited (L. 1896. ch. 623) pursuant to which a bridge had been erected over the Mott Haven Canal at East 135th Street as a means to maintain the width and the depth of the canal at that location.

We may not disregard the fact that Mott Haven Canal is a private waterway and was properly the subject of condemnation. Matter of Canal Place (In re City of New York), 64 App.Div. 604, 606-608, 72 N.Y.S. 461, 463, 464. Cf. Matter of City of New York (In re Canal Place in City of New York), 115 App.Div. 458, 464, 465, 101 N.Y.S. 397, 402, affirmed 191 N.Y. 525, 84 N.E. 1109. There was no requirement that the City retain permanently a bridge across the canal at East 135th Street if, for the purposes of widening that street, it acquired the fee of the segment of canal lands there involved and filled in the canal prism within the line of taking. The only notice to which the appellant was entitled was that prescribed by statute. Matter of Application of Mayor, etc., of City of New York, 99 N.Y. 569, 580,2 N.E. 642, 645. The Greater New York Charter, section 999, requires of the City that its notice of application shall indicate ‘* * * the real property to be taken by a general description by metes and bounds * * *.’ Section 1000 of the Charter provides for a notice which shall contain ‘a general description of the real property to be acquired.’ The City complied with the requirements prescribed in both sections. The City could not include damage Parcel 381 within the line of taking because it was not proposed to acquire that property. The damage to Parcel No. 381 was the consequential loss of easements which occurred by reason of the taking of the property described in the notice. An indication as to the sufficiency of the...