McCabe v. City of New York

• Decision Date: 12 January 1915
• Citation: 107 N.E. 1049,213 N.Y. 468
• Parties: McCABE et al. v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 468

107 N.E. 1049

McCABE et al.

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

Jan. 12, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Marie R. McCabe and another against the City of New York, the Pennsylvania Tunnel & Terminal Railroad Company, and the Long Island Railroad Company. From a judgment for plaintiffs, affirmed by the Appellate Division (155 App. Div. 262,140 N. Y. Supp. 127), defendants appeal. Reversed, unless plaintiffs stipulate to reduce the judgment.

May 20, 1907, Hannah A. McCabe became the owner of a certain piece of land in Long Island City, borough of Queens, city of New York, situate on the northerly side of Thomson avenue, having a frontage thereon of 75 feet, and a frontage on Purvis avenue of 100 feet. The property in question was and is vacant and unimproved.

Hannah McCabe died seised of said premises September 26, 1910, and the plaintiffs herein succeeded to her ownership of the same . Thomson avenue is a street 100 feet in width leading from Long Island City in an easterly direction out into Queens county, and has been used as a public street for a great many years. Title to the same was acquired by the public authorities in the year 1867, and was vested in the defendant, the city of New York, when the several acts complained of by plaintiffs occurred. Thomson avenue, near to the property of plaintiffs, runs practically east and west; Purvis avenue, a street about 60 feet in width, runs northerly and southerly and crosses Thomson avenue 101 feet easterly from the southeasterly corner of plaintiffs' land abutting Thomson avenue.

On and prior to June 27, 1907, Thomson avenue was on a uniform level grade, theretofore lawfully adopted, of an average of 9 1/2 feet over tide water datum, and, during all of the time under consideration, tracks of the Long Island Railroad Company, six in number, crossed Thomson and Purvis avenues at grade upon a right of way 100 feet in width; said tracks being about 160 feet distant from the southeasterly corner of plaintiffs' premises.

The defendant Long Island Railroad Company and the Pennsylvania, New York & Long Island Railroad Company proposed to construct and operate a terminus and terminal facilities, called ‘Sunnyside Yard,’ and a freight yard in the borough of Queens, in New York City, and applied to the city of New York to consent to the construction or improvement of the said terminus and terminal facilities, and likewise applied to the board of estimate and apportionment of the city of New York to change the map and plan of the city of New York by altering, discontinuing, and closing portions of streets and avenues, changing the grade on portions of streets and avenues, and to lay out portions of new streets in order that such terminus, terminal facilities, and freight yard might be constructed and operated. Accompanying such application was a plan, dated June 11, 1906, showing such proposed changes, and which provided for a terminus and freight yard extending from the northerly side of the original right of way of the Long Island Railroad Company at its intersection with Thomson avenue in an easterly direction about 800 feet. The length of said terminus was to be about 2 miles. The plan provided for the discontinuance of Thomson avenue over the width of said terminus and freight yard, and in lieu thereof for the carrying of Thomson avenue over said terminus and freight yard by means of a viaduct, and further provided for the elevation of the grade of Thomson avenue at the intersection of Thomson avenue with the northerly line of the terminus, from 9 feet above high-water datum to 32 feet above high-water datum, and the bridge or viaduct along the line of Thomson avenue was to commence and be carried in an easterly direction along said avenue 800 feet, at various elevations, from 32 feet on the northerly line of the yard to 46 feet at the apex or center, and at the southerly line of said yard to about 17 feet, after which latter elevation said Thomson avenue returned to the original grade of said avenue, and on said original grade Thomson avenue continued southerly into Queens county. Said plans, referred to, further provided for the elevation of the grade of Thomson avenue along the 75 feet frontage which plaintiffs' lands had on said Thomson avenue at 17.3 feet.

The proposed plan having been presented to the board of estimate and apportionment, that body, pursuant to the provisions of the charter, published notice of intention to consider the same, and thereafter, and on February 15, 1907, the board of estimate and apportionment adopted a preamble and resolution wherein was recited the first resolution, publication of the notice to all persons interested, and that such public hearing was given to all persons who had appeared, and, such proposed change having been duly considered by the board, it determined, ‘deeming it for the public interest to change the map or plan of the city of New York by closing and discontinuing portions of certain streets, changing the grades of existing streets, and laying out new streets' within the territory described, as shown upon the map submitted by the railroad companies, ‘and does hereby favor the same.’ Such resolution, to be effective, required the signature of the mayor, but action by him was to be deferred until the agreement which accompanied said plan had been executed by the parties thereto, which agreement was made between the city of New York and the Long Island Railroad Company June 27, 1907, and by the terms of which the city of New York authorized and approved the construction of said terminus, terminal facilities, and freight yard by the railroad companies, and the changes necessary to permit the improvements, including the closing of that portion of Thomson avenue lying between the northerly side of the right of way of the railroad company, which is 160 feet easterly of the southeast corner of plaintiff's property and Meadow street easterly therefrom, and changing the grade of Thomson avenue in front of plaintiff's premises, and gave to the railroad companies the right to erect a viaduct on the line of Thomson avenue over the said terminus and freight yard, which viaduct was to be constructed and paved, including sidewalks thereon, and the change of grade made in Thomson avenue at the expense of the railroad companies.

Said agreement provided in substance that the structure was to be built and the work and acts performed as therein provided, ‘in order to provide a suitable terminus and suitable terminal facilities for the railroad of the (railroad) company and to facilitate the proper connection of the railroad of the Tunnel Company with the various lines of railroad of the Long Island Company, and thus to provide better facilities for the accommodation of the traveling public and the freight and other traffic thereon and the operation of the said railroads, and to avoid the crossing of certain streets at grade which are now crossed by the railroad of the Long Island Company, * * *’ and referred to the application made to the board of estimate and apportionment for the altering, discontinuing, and closing of portions of streets and avenues, by changing the grades of portions of streets and avenues and by laying out portions of streets and avenues, ‘in order that they [the railroad companies] might construct, maintain, and operate the said terminus, terminal facilities, and freight yard,’ as set forth in said application.

After the execution of the agreement, the Pennsylvania, New York & Long Island Railroad Company was duly merged by agreement of consolidation with the Pennsylvania, New Jersey & New York Railroad Company, and thereupon became the defendant Pennsylvania Tunnel & Terminal Railroad Company, and as such succeeded to all the rights and obligations of the original companies, proceeded with the work of construction of the viaduct, and erected a structure of solid masonry by way of wall or embankment extending across the entire 75 feet of frontage of plaintiffs' premises upon said avenue, an average of 17.3 feet in height.

The trial court also found that the elevation of the grade of Thomson avenue in front of plaintiffs' property and the construction of the wall and embankment were not made for street purposes or uses but for the purpose of benefiting the defendant railroad companies; that the change of grade of Thomson avenue in front of plaintiffs' premises was made solely for the purpose of benefiting the railroad companies and was not made for the benefit of the public; that the use of said Thomson avenue for street purposes by the public did not require any change of grade in Thomson avenue in front of plaintiffs' lands; that in the construction of said wall the defendants had encroached upon the plaintiffs' property for the foundation thereof, for which an allowance was made in the sum of $150; that the construction of said wall in front of plaintiffs' premises was unlawful, illegal, and unauthorized, and not for the public uses, and was an unlawful burden imposed upon said avenue and an infringement upon the plaintiffs' rights therein, and by reason thereof plaintiffs suffered damages in the sum of $10,710.

There are no tracks or other property of the defendant railroad companies on Thomson avenue in front of plaintiffs' premises. The surface of Thomson avenue in front of plaintiffs' property consists of a paved roadway with footpaths on either side extending the length of the avenue, which as regarded is used by the general public as a street for both pedestrians and vehicles.Frank L. Polk, Corporation Counsel, of New York City (Clarence L. Barber, of New York City, of counsel), for appellant City of New York.

Alton B. Parker, of New York City, for appellants, Railroad Companies.

Stephen O'Brien, of New York City, for respondents.

HOGAN, J. (after stating the facts as above).

[1] It is the settled...