Summary
In People ex rel. Sound Realty Co. v. Nicholson (277 N.Y. 101) Sound Realty sought mandamus to compel institution of proceedings under chapter 1006 of the Laws of 1895 to ascertain damages due to the discontinuance and closing of these streets.
Summary of this case from Mills v. City of New YorkOpinion
Argued November 15, 1937
Decided March 8, 1938
Appeal from the Supreme Court, Appellate Division, First Department.
Paul Windels, Corporation Counsel ( Paxton Blair, Lewis Orgel and Samuel K. Handel of counsel), for appellant. Bernard H. Arnold and Jean Nelson Penfield for respondents.
Petitioners brought these mandamus proceedings to compel the Corporation Counsel of the city of New York to institute proceedings under chapter 1006 of the Laws of 1895 for the purpose of ascertaining damages due to the discontinuance and closing of Vernon Parkway East, Vernon Parkway North and Osman Place in the borough of the Bronx.
The issue of law is whether the admissible evidence is sufficient to support findings that these ways were ever dedicated and accepted as public streets. They were located on property known as South Vernon Park which was owned by a Mr. Cranford and he regulated, graded and macadamized them. Prior to the annexation of this territory to the old city of New York in 1895, it was included within the village of South Mount Vernon in Westchester county. The name of the village had then been changed to village of Wakefield.
On July 8, 1890, the trustees of the village of South Mount Vernon had adopted a resolution calling for bids "for the surveying and grading of all the streets and avenues of South Mount Vernon * * * with the exception of the Kingsbridge Road," and on July 14, 1890, they adopted a resolution awarding to Richard W. Burrowes the contract for such surveying and grading, the work to be done under the personal supervision of the committee on streets and sidewalks. In conformity with this resolution, Burrowes prepared the map of the village, was paid for it by the village and upon it appears these three streets as well as the other streets within the boundaries of the Cranford property. Although there is no formal resolution directing the filing of this map with the village clerk, there is oral evidence that, after the village had paid the surveyor, it was delivered into the possession of the clerk and used by him. This oral evidence does not contradict anything in the official minutes and we think that it was admissible. Upon this map appears the legend, "Village of South Mount Vernon, R.W. Burrowes C.E. January 1891." There is documentary evidence that, prior to annexation to the city of New York, the trustees of the village caused additional water hydrants and lights to be installed on several of the streets included within the Cranford property, thus recognizing the streets included within that area and appearing upon the official village map prepared by Burrowes as part of the public street system. Such recognition of those particular streets must be deemed to apply to all the streets in that area which appear upon the village map. All or none were accepted as public streets. After annexation of the village to the city of New York, men employed by the city cleaned Osman Place, Vernon Parkway East and Vernon Parkway North, the three streets involved in this litigation and worked on and repaired many of the streets included within the map of the Cranford property. Prior and subsequent to annexation, Osman Place, Vernon Parkway East and Vernon Parkway North were used by the public for vehicular and pedestrial traffic. In People v. Underhill ( 144 N.Y. 316) there was no user; in Matter of Wallace Avenue ( 222 N.Y. 139) the private way never appeared upon an official map; in Johnson v. City of Niagara Falls ( 230 N.Y. 77) the map was made and filed by the owner and not through the act of the municipal authorities.
The orders should be affirmed, with costs.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Orders affirmed.