In re Exterior Street, Borough of The Bronx, City of New York

Decision Date29 May 1941
Citation35 N.E.2d 39,285 N.Y. 455
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, First Department.

Proceeding by the City of New York against Mabel Poillon and others to acquire title to real property 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, entered June 19, 1940, 259 App.Div. 1007, 21 N.Y.S.2d 902, affirming a portion of the final decree of Special Term awarding damages for the condemnation of property rights in Mott Haven Canal, Mabel Poillon and others appeal by leave of the Court of Appeals, leave to appeal having been denied in 260 App.Div. 847, 23 N.Y.S.2d 202.

Reversed and remitted.

Thomas E. Shea, of New York City, for appellants.

William C. Chanler, Corp. Counsel, of New York City (Joseph F. Mulqueen, Jr., Julius Isaacs, and Eugene L. Brisach, all of New York City, of counsel), for respondent.

LEWIS, Judge.

This is a condemnation proceeding involving the acquisition by the city of New York of certain property rights possessed by the owners of lands which abut upon the Mott Haven Canal.

For a long period of years Mott Haven Canal was maintained as a navigable, private waterway extending from the bulkhead line of the Harlem river at One Hundred and Thirty-fouth street northerly to One Hundred and Forty-fourth street between Park and Rider avenues in the borough of The Bronx. As the canal was peculiarly adapted to water-borne commerce in coal and bulk materials the owners of abutting lands, to which attached easements of rights of way over the waters of the private canal, installed docks, coal pockets and various freight handling devices by which advantage was taken of the commercial value of their properties. In 1899 that portion of the canal between One Hundred and Thirty-eighth and One Hundred and Forth-fourth streets was acquired and filled for the purpose of opening a street later known as Canal place. Upon this appeal we are concerned with the remaining segment of the canal between East One Hundred and Thirty-fifth and One Hundred and Thirty-eighth streets which was not closed until 1936. In that year, to accommodate the widening of East One Hundred and Thirty-fifth street, the city of New York instituted the present proceeding by which are condemned certain property rights of the appellants as owners of lands abutting upon the canal. The present record is not clear as to the character of property taken. We assume, however, that the proceeding does not involve the acquisition of title to the appellants' lands. It extinguishes those easements by which the appellants enjoyed rights of ingress and egress in the waters of the canal and thus calls for an appraisal of damages caused to the appellants by the extinguishment of those easements.

The evaluation of property rights thus acquired was the subject of proof at Special Term where findings were made which are set forth in a memorandum decision by the court upon which rests a decree which has been unanimously affirmed by the Appellate Division. Although the proceeding comes here on appeal by our leave, the scope of our inquiry may not include the value of the property acquired which is a question of fact unless the findings are based upon an erroneous theory of law. Matter of City of New York, Fourth Avenue, 255 N.Y. 25, 27, 173 N.E. 910. We think that in fixing the amount of the awards now challenged Special Term adopted, and the Appellate Division has approved, an erroneous theory of law which has prejudiced the appellants' rights.

The ruling by Special Term contains the following statement: ‘The decision of this court is predicated upon the representation made in open court that in place of this 55 feet-wide canal there will be substituted * * * a street of the same width fully improved and not subject to assessment by means of a local assessment area as against the abutting owners for such improvements. This leaves for determination by the court the one question of quantum of damages that is the amount these abutting owners are damaged by reason of the change from a canal to a street. * * * Taking up for disposition damages claim of the abutting owner, the court finds that the damage by reason of the change from a canal to a street amounts to $1,000 for each twenty-five feet of land abutting on the canal.’ (Emphasis supplied.)

The Condemnation Law, Consol.Laws, c. 73, makes provision by section 13 for the appointment of commissioners to ascertain the compensation to be made to owners of real property (including easements (see s 21)) taken by condemnation, section 14 states that ‘in fixing the amount of such compensation, they (the commissioners) shall not make any allowance or deduction on account of any real or supposed benefits which the owners may derive from the public use for which the property is to be taken, or the construction of any proposed improvement connected with such public use.'

The appellants argue that in fixing the awards to which they are entitled in this proceeding Special Term erred when, contrary to the express provisions of the statute quoted above, it considered benefits to the appellants' land which it ruled would result from a proposed public improvement. We have been unable to find any statute or provision of the New York City Charter (effective January 1, 1938) or the Administrative Code (L.1937, Ex.Sess., ch. 929), and none has been cited by counsel, which makes inapplicable to this case section 14 of the Condemnation Law. We do not, however, agree with the interpretation of that statute now urged by the appellants.

In appraising the damages due to the extingishment of an easement, only nominal direct damages may be allowed for the taking of the easement itself but consequential damages may be awarded for injury to the abutting land to which the easement attached. Newman v. Metropolitan Elevated Ry. Co., 118 N.Y. 618, 625, 628, 23 N.E. 901,7 L.R.A. 289; Bookman v. New York Elevated R. R. Co., 137 N.Y. 302, 304, 305, 33 N.E. 333; Sutro v....

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