Sesto v. Mielke

• Decision Date: 10 February 1961
• Citation: 28 Misc.2d 228,212 N.Y.S.2d 866
• Parties: Application of Concetto SESTO and Frances Sesto, Petitioners, v. Alfred E. E. MIELKE, as Assessor of the Village of Lindenhurst, and Joseph F. Bassano, William K. Beilstein, William Zwick, John W. Suriano and Edward G. Trainor, as and constituting the Board of Trustees of the Village of Lindenhurst, Respondents.
• Court: New York Supreme Court

Page 866

212 N.Y.S.2d 866

28 Misc.2d 228

Application of Concetto SESTO and Frances Sesto, Petitioners, v. Alfred E. E. MIELKE, as Assessor of the Village of Lindenhurst, and Joseph F. Bassano, William K. Beilstein William Zwick, John W. Suriano and Edward G. Trainor, as and constituting the Board of Trustees of the Village of Lindenhurst, Respondents.

Supreme Court, Special Term, Suffolk County, Part II.

Feb. 10, 1961.

Housel & Mishkin, Lindenhurst, for petitioners.

Charles J. Cowan, Lindenhurst, for respondents.

THOMAS P. FARLEY, Justice.

This proceeding pursuant to Article 78 of the Civil Practice Act seeks to compel the respondent Assessor of the Village of Lindenhurst to affix his signature to, and accept for filing, a certain Certificate of Partial Abandonment of a Subdivision pursuant to subdivision 3 of Sec. 335 of the Real Property Law.

Petitioners are the owners of two tracts of land situate on the north side of Sunrise Highway in the Village of Lindenhurst and the Town of Babylon. These parcels are described in two subdivision maps filed in the office of the Suffolk County Clerk in the years 1870 and 1879, respectively. It appears that these maps, taken together, describe a major portion of all land within the boundaries of the Village of Lindenhurst. Petitioners' two parcels are separated by '42nd Street', an unopened street which was laid out on the two subdivision maps but never formally dedicated and title to which is in the petitioners.

In accordance with Section 335, subdivision 3 of the Real Property Law, petitioners executed a written Certificate of Partial Abandonment of a Subdivision covering the two tracts and that portion of 42nd Street lying between. After having obtained the consent of the Assessor of the Town of Babylon endorsed on the Certificate, petitioners submitted it to the respondent Assessor of the Village of Lindenhurst, who, on instructions from the respondent Board of Trustees of the Village, refused to affix his consent thereto.

Section 335, subdivision 3 of the Real Property Law, insofar as is here applicable, states as follows:

'* * * (W)henever at least twenty years have elapsed since the filing of said map, the owner of the property to be abandoned may * * * abandon any streets or portions thereof shown on said map and which are within the bounds of the property to be abandoned if such streets or portions thereof are neither opened, nor public highways, nor used by the public, nor necessary for the use of owners, occupants or any other persons having an interest in any part of the subdivision. * * * A copy of each certificate of abandonment must be filed with the assessor and/or board of assessors of each town and village wherein any portion of the property to be abandoned is situated, and the endorsement of approval by each such assessor and/or board of assessors must be endorsed on the original of each certificate presented to the county clerk for recording.' (Italics added.)

The respondents' answer, while admitting that the subject street was never formally dedicated, opened or used as a public highway, asserts that it is 'necessary for the use of owners, occupants or other persons having an interest in the subdivision.' It appears that a 1942 line and grade map of the Village of Lindenhurst, prepared for the purpose...