Opinion
May, 1934.
Decree, in so far as an appeal is taken therefrom in respect to damage parcels 10, 12 and 18, reversed on the law and the facts, with costs, and the matter remitted to Special Term to determine the amount of damages sustained. Appellant Harbro Holding Company, Inc., is the owner of a purchase-money mortgage on a tract of land that subsequently was plotted and streets laid out and the map filed. These streets were private easements only and were not dedicated to any public use. Subsequently, in accordance with the terms of the mortgage, the mortgagee released certain lots for a consideration, and the boundaries were given as described on the streets laid out on the map. These releases were made subsequent to the taking of title of these streets on the map by the city for public use. The lien of the mortgage was not impaired by virtue of the subsequent filing of the map and the releases subsequently executed. ( Queens County Sav. Bank v. Graham, 38 Misc. 711; affd., 83 App. Div. 629.) The claimant is entitled to substantial damages, unless the city can show that the remaining security is ample. Young, Hagarty, Carswell, Scudder and Davis, JJ., concur.