Reis v. City of New York

• Decision Date: 05 March 1907
• Citation: 188 N.Y. 58,80 N.E. 573
• Parties: REIS v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 58

80 N.E. 573

REIS

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

March 5, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Rose Reis against the city of New York and others. From a judgment of the Appellate Division (99 N. Y. S. 291), reversing a judgment in favor of plaintiff, she appeals. Affirmed.

Alfred E. Sander, for appellant.

William B. Ellison, Corp. Counsel (James D. Bell, of counsel), for respondents.

WILLARD BARTLETT, J.

In order to understand this case, reference must be had to that portion of the official map of the borough of Brooklyn on which appear six city blocks, three on each side of Hawthorne street, between Troy avenue on the east and Brooklyn avenue on the west. Two of these blocks lie between Troy avenue and Albany avenue; two of them (the middle ones) lie between Albany avenue and Kingston avenue; and the third pair lie between Kingston avenue and Brooklyn avenue. The city of New York owns all the lots which abut on Hawthorne street in the two middle blocks; that is to say, the blocks between Albany avenue and Kingston avenue. The plaintiff owns a considerable number of lots in the two easterly blocks-that is to say, in those between Albany avenue and Troy avenue-and also a considerable number of lots in the two westerly blocks; that is to say, in those between Kingston avenue and Brooklyn avenue. Most of these lots belonging to the plaintiff (but not all of them) abut on Hawthorne street. The city of New York having, as is contended, taken the necessary legal proceedings for the closing and discontinuance of Hawthorne street, between Albany avenue and Kingston avenue, has, through the agency of its board of health, erected a hospital building upon that portion of Hawthorne street thus closed and discontinued, and threatens further to obstruct that portion of Hawthorne street for hospital purposes. The plaintiff instituted the present suit in equity to restrain the continued maintenance and further erection of such obstructions, basing her cause of action upon two grounds: (1) That the portion of Hawthorne street in question has never legally been closed; and (2) that even, if it has legally been closed in other respects, the plaintiff possesses private easements therein of which she cannot be deprived without just compensation. The assertion that the closing of this portion of Hawthorne street was not legally effected rests upon the contention that the provisions of the Greater New York charter in reference to the closing of streets have not been complied with by the city authorities. The assertion that the plaintiff is the owner of private easements of which she cannot be deprived without compensation, even by a lawful closing of the street, is based upon the fact that both the plaintiff and the city acquired title to the lots which they, respectively, own upon the six blocks in question from a common grantor, and that the conveyances to each were made with reference to a map upon which all such lots appeared as laid out and bounded upon the several streets which have been named. The doctrine invoked by the plaintiff in support of this branch of her case is the rule that, where lots of land are sold and purchased with reference to a map showing them to abut upon a street or road laid out thereon, all purchasers who buy with reference to the general plan disclosed by such map acquire an easement in the strips of land thus designated as streets or roads to have them permanently kept open as public ways. The plaintiff prevailed upon the trial at Special Term, where the court held in her favor upon both points, adjudging that the proceedings taken by the municipal authorities for the closing of the portion of Hawthorne street in question were not legally affective to accomplish that purpose, and also that the plaintiff was entitled to private easements in and to the whole of Hawthorne street, as shown upon the map according to which she acquired title, known as the ‘Pecare map,’ including the right to have Hawthorne street kept open for its full width and throughout its whole length as thereon delineated, as a means of access to her property from either direction. The judgment based upon this decision has been reversed by the Appellate Division, which decided both of the principal questions involved adversely to the plaintiff and granted a new trial, and the plaintiff has now appealed to this court upon the usual stipulation for judgment absolute in the event of an affirmance here.

I will first consider the legal sufficiency of the proceedings relied upon by the city as having effected the closing or discontinuance of this part of Hawthorne street. These proceedings were undertaken in compliance with what was evidently deemed to be the authority conferred upon the board of estimate and apportionment and the mayor of the city of New York by section 442 of the Greater New York charter (Laws 1901, p. 199, c. 466, as amended by Laws 1903, p. 957, c. 409). The amended section cited empowers the board of estimate and apportionment, whenever and as often as it may deem it for the public interest so to do, ‘to change the map or plan of the city of New York, so as to lay out new streets, parks, bridges, tunnels and approaches to bridges and tunnels and parks, and to widen, straighten, extend, alter and close existing streets.’ Notice of its proposed action must be published for 10 days in the city record and corporation newspapers, and an opportunity must be given for all persons interested in such change to be heard at a specified place and at a time not less than 10 days after the first publication. After due publication of the notice, and after hearing any protests and objections which there may be against the proposed change, ‘if the said board shall favor such change, notwithstanding such protests and objections, and the same receives the approval of the mayor, such change in the map or plan of the city of New York, * * * shall be deemed to have been made.’

There is nothing in the findings of the trial court to indicatethat Hawthorne street, between Kingston and Albany avenues, was ever actually opened or used as a public street. It was laid out as a proposed street upon an official map of streets and avenues proposed to be opened as public streets and avenues in the town of Flatbush upon an official map made in 1874 by commissioners appointed pursuant to law, which map by force of the legislation annexing the town of Flatbush to the city of Brooklyn and subsequently consolidating the city of Brooklyn with the city of New York became a part of the map or plan of the greater city. After consolidation, by virtue of a resolution adopted by the board of estimate and apportionment on March 14, 1900, a proceeding was instituted to open Hawthorne street between Nostrand and Albany avenues (which would embrace that portion of the street to which this controversy relates), and about a year afterward commissioners of estimate and assessment were appointed in that proceeding by the Supreme Court for the purpose of acquiring the necessary title in behalf of the city. Section 990 of the Greater New York charter authorized the board of estimate and apportionment under certain circumstances, after the commencement of a street opening proceeding, to direct by a three-fourths vote that the title to any piece of land lying within the lines of the street to be opened should be vested in the city of New York. Acting under the power thus conferred, the board of estimate and apportionment on July 28, 1902, directed that the title to the property required for the opening of Hawthorne street between Nostrand and Albany avenues should be vested in the city on the 15th day of August, 1902. It does not appear whether or not any other steps were ever taken in this proceeding for the opening of Hawthorne street. Prior to the adoption of the abovementioned resolution, declaring the title vested, the board of estimate and apportionment could have discontinued the proceeding under section 1000 of the Greater New York charter; but the right thus to discontinue a street opening proceeding seems by the language of that section to be restricted to a ‘time before title to the lands or premises to be thereby acquired shall have vested in the city of New York.’ If, then, after the resolution vesting the title was adopted, the municipal authorities desired to devote that portion of the bed of Hawthorne street between Albany and Kingston avenues to hospital purposes, they could only do so by taking the steps prescribed by law to effect a closing or discontinuance of that part of the street; and this they attempted to do dy pursuing the course prescribed by section 442 of the Greater New York charter as amended in 1903, to which reference has already been made. At a meeting of the board of estimate and apportionment held on December 11, 1903, resolutions were adopted proposing to change the map or plan of the city so as to close and discontinue Hawthorne street between Kingston avenue and Albany avenue in the borough of Brooklyn, and appointing a hearing at a meeting of the board to be held on December 29, 1903, at which the proposed action would be considered. Notice of the hearing was duly published as required by section 442. The public hearing duly took place, and thereupon the board adopted a resolution declaring that it favored the proposed change in the map so as to close and discontinue that portion of Hawthorne street in question, which resolution was on the day of its adoption duly approved by the mayor of the city of New York.

The learned counsel for the appellant contends that the adoption of this resolution and its approval by the mayor did not constitute a legal closing of Hawthorne street between Albany and Kingston avenues, because the proceeding did not originate with the local board of the district in which the proposed closing was to take...