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App. Div.]

Second Department, March, 1910. and took possession of such part in January, 1906; that thereafter it tore down and removed the entire front wall of the building, and a part of the side walls, whereby the defendants were deprived of the use and possession of the premises, which became untenantable by reason of such destruction, and that the defendants elected to quit and surrender the part of the premises not acquired by the city, and did so quit and surrender the same to the plaintiff, who went into possession thereof. The second defense is that upon hearings before the commissioners the plaintiff proved that by reason of the city's acquiring title the building erected on the premises would be totally destroyed, and that the commissioners duly found that the removal of the front wall and part of the side wall of the building would cause a total loss of said building and awarded to plaintiff a sum which adequately compensated plaintiff for the total loss and destruction of said building. For a third defense the defendants allege that during the pendency of such proceedings plaintiff represented to defendants that upon the city acquiring title plaintiff would tear down the entire building and erect a new building, and that upon such acquisition of title the defendants' lease would cease and determine, and that defendants would thereupon be required to give up the use and possession of said premises and surrender the same to plaintiff; and in a separate paragraph it is alleged that defendants relied upon said representations, and caused another building owned by defendants to be allered so as to be suitable for their business "and thereafter quit and surrendered the said premises to plaintiff as said plaintiff represented they would be required to do." It will be observed that in the third defense the defendants do not state at what date they surrendered the premises. They “thereafter quit and surrendered," that is, after the things enumerated in paragraph II. They vaguely state that they quit and surrendered their premises at some time before the expiration of the term by reason of the direction that they should do so upon the city acquiring title. The first defense is in effect that the city sought the title to part of the lot against the present parties; that they and the city contested the question whether the taking would involve the destruction of the building; that it was adjudged that the leasehold premises were totally destroyed, and the landlord and tenants compensated as for total destruction; that in January, 1906, the city took possession of part of the premises, and later tore down the front wall and side wall of the building, whereby the defendants were deprived of the use and possession of the building thus made untenantable, and thereafter elected to surrender and did quit and surrender the part of the premises not acquired by the city, to the plaintiff. Here is the same indefinite state. ment as to the time of surrender. Non constat such surrender did not take place until the lease expired. I think that the allegation of surrender adds nothing to the effect of the other facts stated in this defense. Section 996 of the charter (Laws of 1901, chap. 466) is as follows: “In all cases where the whole of any lot or parcel of land or other premises, under lease or other contract, shall be taken for any of the purposes aforesaid, by virtue of this title, all the covenants, contracts and engagements between landlord and tenant, or any other contracting parties, touching the same, or any part thereof, shall, upon the vesting of the title in The City of New York, cease and determine and be absolutely discharged; Second Department, March, 1910.

(Vol. 137. and in all cases where part only of any lot or parcel of land, or other premises, so under lease or other contract, shall be so taken for any of the purposes aforesaid, all contracts and engagements respecting the same shall, upon such vesting of title, cease, determine and be absolutely discharged as to the part thereof so taken, but shall remain valid and obligatory as to the residue thereof, and the rents, considerations and payments reserved or payable, and to be paid, for or in respect to the same, shall be so apportioned as that the part thereof justly and equitably payable, or that ought to be paid, for such said residue thereof, and no more shall be demanded or paid, or recoverable, for or in respect of the same.” The defendants do not ask to apportion the rent. Therefore, to invoke this section, they must show the equivalent of total destruction. Their lease covered only the store and part of the basement. They allege acts that amount to destruction thereof. Moreover, they charge thai total destruction was adjudged, and compensation ordered accordingly. In the second defense they show that the plaintiff proved total destruction, and obtained an award and compensation therefor. So by the pleading it appears that the plaintiff recovered compensation for what he had leased to defendants upon the ground of the total destruction of the leased property. The city took title to part of the destroyed property on November 11, 1905, but the statement in the answer is that the defendants did not quit and surrender the part not taken by the city until some time after the city took possession in the month of January, 1906. For aught that appears in this defense, they did not surrender the premises before the expiration of the lease. I am inclined to think that a new trial should be had by reason of the third defense. In the absence of any demand for apportionment of the rent in the pleadings, the plaintiff may recover the whole rent to the time that the defendants actually quit and surrendered the premises, if they are proven to have done so. This decision is based entirely upon the statements in the answer, and is only available to the defendants in case they support such statements by evidence. The judgment should be reversed and a new trial granted, costs to abide the event. Woodward, Jenks, Burr and Rich, JJ., con. curred. Judgment reversed and rew trial granted, costs to abide the event.

GEORGE L. HILTON, Respondent, v. The City of New York and JOHN H.

O'BRIEN, as Commissioner of the Department of Water Supply, Gas and Electricity of the City of New York, Appellants.

Highway obstruction of public street dedication acceptance laches. Appeal from a judgment of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings June 23, 1909.

Judgment affirmed, with costs, upon the opinion of Mr. Justice Thomas at Special Term ; Hirschberg, P. J., Jenks, Rich and Carr, JJ., concurred; Burr, J., dissented on the ground that the evidence does not establish dedication on the part of the city. The following is the opinion delivered at Special Term:

THOMAS, J.: The action is to restrain the defendant from obstructing an alleged public highway, called Dinsmore place, and to compel the removal of App. Div.]

Second Department, March, 1910. existing obstructions therein. Prior to the year 1862 the city of Brooklyn acquired title to certain lots in the town of New Lots, county of Kings, known and designated upon a map filed in the register's office of such county on March 10, 1835, and entitled “Map of 995 Lots of the Rapelje prop’y on the Brooklyn & Jamaica Railroad & Turnpike, by Martin G. Johnson.” The lots so acquired were bounded on the south or southerly by a strip marked “Railroad;" on the west by Logan street, now Locust street; upon the north by lots now owned by the plain tiff and by other persons, and on the east by Chestnut street. Rapelje street, now Richmond street, was laid out on such map from the railroad strip through the land acquired by the city, between Chestnut and Locust streets, and was the westerly boundary of the lots now owned by the plaintiff, which extend from Rapelje to Chestnut streets. The map also shows Fourth street laid out through the lots acquired by the city and extending from Chestnut street westerly to Rapelje street. The plaintiff's lots are the fifth tier of lots north of Fourth street. The map also shows Third street running through the lots of the city easterly from Locust street to Rapelje street, the northerly line thereof being in a westerly extension of the southerly line of Fourth street. On March 13, 1858, there was filed in the clerk's office of such county a map entitled “ Brooklyn Water Works location of Engine House and Force Tubes made from survey Dec. 1857.” This map was filed under the alleged authority of an act of the Legislature passed February 11, 1857, entitled “An act to provide for the supply of the city of Brooklyn with water," being chapter 22, and is signed James P. Kirkwood engineer; John H. Prentice, president. This map shows the appropriation for construction purposes of Third and Fourth streets, and of two tiers of lots northerly thereof between Chestnut and Locust streets, and north of the land so appropriated the map shows a strip of land fifty feet wide extending between such two streets marked “Pro. posed street.” The northerly line of the proposed street is the southerly line of the plaintiff's lots. This “ proposed street” is “Dinsmore place," which this action concerns. On November 13, 1874, there was filed in the office of the reg. ister of the county of Kings a map entitled “Town Survey Commissioners' Map," now a part of the map of the city of New York, which shows a strip identical with the “proposed street," but such strip bears no pame. The following acts relate to “Dinsmore place:" (1) A sewer has been constructed through it from Richmond to Chestnut street. (2) A sewer catch basin has been located at the intersectior of the curb lines of Richmond street and Dinsmore place. (3) At the intersections of Dinsmore place with Logan street and Chestnut street the curbs of such streets have been turned to form a connection with the curbs on Dinsmore place when opened. (4) The board of aldermen changed the grades and estab. lished new grades for all the streets in the neighborhood, including the street in question. The ordinance is: “'F' -'Street.' Beginning at the intersection of 'Street' and Logan street, the elevation to be 45.0 feet.” Then the grade is fixed at several points along the strip in question. (5) In 1907 the board of estimate and apportionment passed this resolution: Resolved, That the Board of Estimate and Apportionment of The City of New York hereby disapproves of the resolution adopted by the Local Board of the Bushwick District, Borough of Brooklyn, on the 1st day of August, 1906, recommending the closing of Dins. Second Department, March, 1910.

(Vol. 137. more place, between Logan and Chestnut streets, in the Borough of Brooklyn." This action followed the report of the chief engineer to the board of estimate, which is so important that it should appear. “CLOSING DINSMORE PLACE AND LAYING Our New STREET, BROOKLYN.

* * * “ BOARD OF ESTIMATE AND APPORTIONMENT, OFFICE OF THE CHIEF ENGINEER,

January 18, 1907. “Hon. GEORGE B. MCCLELLAN, Mayor,

“Chairman of the Board of Estimate and Apportionment. “Sir.—On December 14, 1906, the Board of Estimate and Apportionment gave a public hearing on the proposed closing and discontinuing of Dinsmore place, between Logan and Chestnut streets, and the laying out of a new street between Logan and Chestnut streets, in the Borough of Brooklyn. Upon the request of property owners who appeared, the consideration of the matter was postponed. Meanwhile Mr. Edward F. Linton, attorney for a number of the owners, has submitted to the Board a brief stating that the owners of the property which would be taken for the laying out of the new street instead of Dinsmore place, would be seriously damaged, as the property which they now hold lying immediately north of the present Dinsmore place would be unavailable for development, and urging that if the Board were to take any additional land, it take 100 feet north of the present Dinsmore place, which would include all of the property of the protestants, and avoid damage to the portion which might be left.

"The proceeding originated in a request of the Deputy Commissioner of Water Supply for the Borough of Brooklyn for the closing of the street in order that the land now occupied by it might be used as a part of the grounds of the Ridge. wood Pumping Station. In reporting upon the resolution of the Local Board which was adopted as a result of this request, it was pointed out that, while the City already owned the existing Dinsmore place, it was laid out on the map as a public street, and the abutting property undoubtedly had right of access to it as it had been used as a public highway for many years. It was also noted that the present street formed the southerly terminus of Richmond street and Force Tube avenue, both of which streets would be deprived of outlet, and it was suggested that if the present Dinsmore place were closed, a substitute street be laid out immediately to the north. Since receiving the brief of Mr. Linton, your Engineer has communicated with the Commissioner of Water Supply, Gas and Electricity, calling his attention to the points raised by the protestants and asking him whether or not he had any use for the additional land which they proposed that the City should take, that is, whether or not the Department would need a strip 100 feet in width instead of the 50 foot strip included in the present Dinsmore place. Under date of January 14, I have received from Deputy Commissioner Goodwin, of the Department of Water Supply, Gas and Electricity, a copy of a report by the acting Chief Engineer for the Borough of Brooklyn, in which he states that when the Department requested the closing and discontinuing of Dinsmore place it was expected that the pumping station would be extended to the north, and it was believed that, inasmuch as the land App. Div.]

Second Department, March, 1910. within the present Dinsmore place had been taken from land originally pur. chased for water works improvements, there could be no objection raised to the closing of the street. He further states that if such action would result in claims for damage to property either on this street or on other streets which might be deprived of an outlet he does not believe that it would be advisable to close the street, and suggests that the proceedings to do so be discontinued if such action will involve the laying out of a new street at the expense of the City. This recommendation is approved by the Deputy Commissioner, and in view of these facts it would seem unnecessary for the Board to take any action upon the plan submitted by the Local Board, unless it be to disapprove the plan in order that the owners of the property north of Dinsmore place may feel secure in proceeding with the development of their property.

“ It is, therefore, recommended that the plan for which the hearing was given on December 14, last, be disapproved.

“Respectfully,
“NELSON P. LEWIS,

Chief Engineer." (6) About the year 1899 the water department constructed an iron fence on the north side of the engine house grounds so as to inclose ten feet on the southerly side of Dinsmore place. (7) Since this action was begun a portion of this fence was taken down and a brick building one story high erected, the northerly wall of which is on the line of the fence. This was done pursuant to plans prepared some considerable time before this action was begun. (8) The water department has for some years back used at its convenience some portion of Dinsmore place for storing water pipes and unused building stone, and dirt and rubbish has been thrown on the street so as to raise the grade. (9) Dinsmore place, since it has existed as above stated, has been used by the public for passage and by the city for the water works. In view of such history I conclude that the strip of land known as Dinsmore place was dedicated for street purposes and has been recog. nized as such by the public authorities. The evident design was to extinguish Third and Fourth streets and substitute Dinsmore place. Without such substitution a gross injustice has been done the plaintiff and others similarly related to such streets, as they would have no near outlet east and west to the south, as the railroad strip was not of right available to them so far as it appears. It is said that the plaintiff has been guilty of laches. I think that he has not so delayed as to preclude any remedy. The decree will provide against further obstruction of the street, the removal of refuse suffered to accumulate there, the removal of the fence and wall; but as to the whole street, or as to the ten feet appropriated from the street, the decree will perioit the city to build thereon upon payment of damages to the plaintiff. And if the city elects to pay such damages, a reference may be ordered to ascertain what sum shall be paid the plaintiff in lieu of its easement in the street. If the city elects to condemn the plaintiff's interest in the street, the execution of the decree will be stayed sixty days to allow proceedings therefor. The plaintiff will have costs,

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