In re Hunter

• Decision Date: 22 June 1900
• Citation: 163 N.Y. 542,57 N.E. 735
• Parties: In re HUNTER.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 542

57 N.E. 735

In re HUNTER.

Court of Appeals of New York.

June 22, 1900.

Appeal from supreme court, appellate division, Third department.

Application by Margaret Hunter to vacate an assessment for street improvement. From an order of the appellate division (62 N. Y. Supp. 169) reversing an order denying the application, defendant appeals. Reversed.

During the year 1898 the city of Albany constructed a sewer, and assessed a portion of the expense upon premises owned by Margaret A. Hunter, who instituted this proceeding to set the assessment aside upon the ground that one of the streets, so called, through which the sewer passed, was not a public highway, but her private property. Both parties conceded that, unless the strip of land called ‘Rawson Street’ was a public street, the construction of the sewer therein was unauthorized, and the assessment unwarranted. The facts, as stated by the special term, are substantially as follows: ‘The premises in dispute, together with considerable surrounding property, were purchased in 1861 by Andrew R. Hunter, the husband of the petitioner, who died in 1893. In 1873 he caused a map of his property to be made, which was filed in the county clerk's office in 1877. This map shows a street called ‘Rawson Street,’ 70 feet in width, leading from Central avenue northerly to lands of the New York Central Railroad Company, crossing streets indicated upon the map as Hunter avenue, Second street, Third street, and Lumber street; the latter street being now known as ‘Livingston Avenue.’ The evidence shows that after the making of this map Mr. Hunter conveyed several lots, described with reference to the map, and with reference to Rawson street as there laid down. In 1875 the city purchased from Mr. Hunter a considerable tract of land for a public reservoir, and upon the construction of the reservoir the portion of Rawson street, as indicated upon the map, lying between Hunter avenue and Third street, was closed; leaving, however, those portions of Rawson street shown upon the map between Central and Hunter avenues, and between Third and Lumber streets, the same as before. It also appears that from 1875 to 1890 the assessors of the city made their assessments of the property of Mr. Hunter on Rawson street with reference to the lots and to that street as laid down upon the map, and that during those years he was not assessed and did not pay any tax upon the lands designated as Rawson street thereon. In July, 1889, Mr. Hunter caused a new map of a portion of his property to be made, showing an open way, 66 feet in width, leading from Third street to Livingston avenue, but not designated thereon as a street or by any name, but showing this way as leading at right angles from Livingston avenue, instead of from Third street, as Rawson street had been indicated upon the map of 1873. The southerly end of this open way at Third street upon the map of 1889 was very nearly in the same place as was Rawson street upon the map of 1873, at that location; but the northerly end of this open way, at Livingston avenue, was carried a little more than its width further west than the place indicated as ‘Rawson Street’ on the map of 1873. There is no proof that the map of 1889 was ever filed in the county clerk's office, but the testimony shows that subsequent to its date, and down to the death of Mr. Hunter, the assessments of this property were changed to correspond with the new map, and that he paid his assessments so made. * * * These changed assessments did not include, and Mr. Hunter did not thereafter pay, any tax upon the open way or street shown upon the map of 1889. Since Mr. Hunter's death the assessments have continued in the same way against the petitioner, and she has received a like exemption of this open way from taxation. In 1890 Mr. Hunter and his wife conveyed the lot on southwesterly corner of Livingston avenue and this open way, as appearing upon the map of 1889, and one-half of the lot next adjoining thereto on the south, as shown on such map, to Robert Burns, and described such premises as being bounded ‘east by the west line of Rawson street.’ * * * The evidence shows the use of the open way, indicated upon the map of 1889, by pedestrians and vehicles as a public street for from ten to fifteen years past, during which time it has been fenced upon each side along lines corresponding with those appearing upon the map. During this time it has been open to, and in fact used very largely by, the public in passing between Third street and Livingston avenue, and has furnished the only avenue communicating with those streets between Colby street and New York Central avenue. It is also shown that Rawson street has been known in that neighborhood as a public street for twenty-five years past. The photographs in evidence show a well-beaten road or carriageway over this open way, of the same general character as that of the connecting streets. The common council in June, 1871, adopted a resolution that the next street west of New York Central avenue, ‘running from Central avenue north to Lumber street, be called Rawson street.’ It also passed a resolution in December, 1879, directing the street commissioner to ‘cause a cross-walk to be placed on Rawson street at Central avenue.’'

It does not appear that any work was ever done on Rawson street, as laid out on the map of 1889, under the sanction of the city authorities; but on the 16th of May, 1898, the following ordinance was adopted by the common council, and two days later was approved by the mayor: ‘A law to authorize the construction and laying of a vitrified stone-ware pipe sewer from the brick sewer constructed by the N. Y. C. & H. R. R. R. Co. southerly along lands belonging to said railroad company and to others, to Livingston avenue, and thence southerly along the center of Rawson street to the center of Third street, and thence east along the center of Third street to a point about fifty feet west of New York Central avenue, and also west from the center line of Rawson street along the center of Third street to the east line...