Opinion
June 3, 1910.
James Regan Fitz Gerald of counsel [ Joel J. Squier with him on the brief], Archibald R. Watson, Corporation Counsel, for the appellant.
Joseph A. Young of counsel [ Whalen Dunn, attorneys], for the respondent.
Commissioners of estimate and assessment having been appointed in a street opening proceeding entitled "In the Matter of Opening of Richard Street from Bronx and Pelham Parkway to Morris Street, Borough of the Bronx, City of New York," Elizabeth C. Smith, upon a petition verified June 8, 1908, made a motion before the Special Term for an order authorizing and directing the commissioners of estimate and assessment appointed to the above-entitled proceeding to ascertain and determine the compensation which should be made for the loss and damage to said petitioner by and in consequence of the closing and discontinuance of Elliott avenue, in the borough of the Bronx, in front of and adjoining petitioner's specified property, under and pursuant to chapter 1006 of the Laws of 1895, and that the amount of the loss and damage so ascertained be included in the report of said commissioners. From the order granting said motion the city appeals.
In her petition she alleges that the final map of the borough of the Bronx, showing the closing and discontinuance of Elliott avenue, was duly filed on the 13th of November, 1901. She does not allege that at the time of said filing she was the owner of the property alleged to have been affected. If she was not then the owner, she suffered no damage and is entitled to no compensation.
This court said in Matter of Mayor, etc. [ Walton Avenue] ( 131 App. Div. 696; affd., 197 N.Y. 518): "The moment the avenues and street became legally closed the right of the landowners to damages accrued by virtue of the provisions of sections 4 and 14 of chapter 1006 of the Laws of 1895. * * * This was a personal claim which accrued to the owner of the property at the time of the legal closing of the avenues and street, and the cutting off of his rights therein by the filing of the map. The just compensation to which each owner is entitled is the depreciation in value of his parcel of land by the legal closing of the avenue or street, and the right thereto accrued at once, without regard to the question as to whether the streets were thereupon actually closed, as they might have been, or whether the property owners were permitted to continue to use them, and regardless of whether or not the owner continued to hold the title to the parcel which was damaged by the closing of the avenue or street, or whether or not he thereafter parted with title voluntarily or title was taken from him in invitum, for those considerations could not affect the quantum of damages or the right thereto, which does not run with the land. ( King v. Mayor, etc., of N.Y., 102 N.Y. 171; Matter of Grade Crossing Commissioners, 64 App. Div. 71; affd., 169 N.Y. 605; Johnson v. Pettit, 120 App. Div. 774; Matter of City of New York [ Newtown Creek Bridge], 128 id. 150; Matter of Mayor [ Trinity Avenue], 116 id. 252; Harris v. Kingston Realty Co., Id. 704; Matter of Seventh Ave., 59 id. 175. See, also, Wehrenberg v. Seiferd, 125 id. 527.)"
Even if it were possible to spell out from the language of the petition an allegation of ownership at the time of the closing of Elliott street, the petition is fatally defective in that it does not contain any allegation of service upon the comptroller of a written statement or claim for compensation within six years after the filing of the map. The only allegation is "that said alterations and changes, or the closing and discontinuance of said Elliott Avenue were not done at her request and that by reason of the aforesaid, the damages accruing to your petitioner is the sum of $5,000, and your petitioner has since the discovery of the above facts, and more than 30 days before the date of this petition, presented to the comptroller of the city of New York a written statement of claim for compensation by reason of the above; that she has received no compensation therefor; that the fee title to the premises lying within the said Elliott Avenue has never been acquired by the City of New York." Respondent's counsel states in his brief, "It is claimed by the City, and admitted by the respondent, that her claim was not filed within six years from the time of the filing of the map, and therefore by the above provision the right to damages has been barred."
The provision referred to is that contained in section 5 of chapter 1006 of the Laws of 1895, which provides for the filing of claims for damages suffered by reason of the discontinuance and closing of streets, "provided, however, that within six years after the filing of such map any owner or owners interested and affected by such discontinuance and closing shall present to the chief financial officer or comptroller of such city a written statement or claim for compensation, and a request that such proceeding be instituted for the ascertainment and determination thereof, or be forever barred from claiming compensation for such closing or discontinuance."
I think that the filing of the claim within the time limited was a condition precedent to her right to receive compensation, which had to be alleged and proved, similar in this respect to the notices required to be filed by section 261 of the Greater New York charter, and chapter 572 of the Laws of 1886 in actions against the city of New York, of which we said in Bernreither v. City of New York ( 123 App. Div. 291; affd., 196 N.Y. 506): "It is part of the procedure which the Legislature has provided shall be taken in enforcing claims against the city. It is a condition precedent to the right to sue. It is, therefore, necessary to allege and prove the demand and the neglect or refusal to adjust or pay and the expiration of the thirty days. * * * Under the charter provision a claim had to be filed with the fiscal officer, the comptroller, and thirty days allowed to lapse for adjustment or payment before suit. Under this act a notice of intention to sue was required to be filed with the law officer, and within six months after the cause of action shall have accrued. Compliance with each provision had to be alleged and proved. They were independent provisions designed to conserve different objects."
In People ex rel. Winthrop v. Delany ( 120 App. Div. 801; affd., 192 N.Y. 533), where this court granted a peremptory writ of mandamus to compel the corporation counsel to institute proceedings under the provisions of the Street Closing Act to ascertain the alleged damage of an abutter, we said: "All that is necessary to establish to the satisfaction of the court is that a street or a part thereof has been discontinued or closed in the manner provided by law by the local authorities; that the property abuts upon such street so discontinued or closed; that the owner has within the time limited presented to the comptroller a written statement or claim for compensation and a request that a proceeding be instituted by the appointment of commissioners for the ascertainment and determination thereof, and that such proceedings have not been instituted. The petition in the matter at bar sets forth all those facts."
The respondent attempts to avoid the limitation in time and the condition precedent of the service of notice required by section 5 of the act by citing section 15 thereof. That section, after providing for filling vacancies in the commission, proceeds: "The said court shall have power at any time to amend any defect or informality in any of the special proceedings authorized by this act that may be necessary, or to amend any description, or to cause other property to be included therein, or property included therein to be excluded therefrom, or to permit any person having an interest therein to be made a party thereto, or to relieve from any default, mistake or irregularity, or to direct such further notice to be given to any party in interest as it deems proper, and also to appoint other commissioners of appraisal in place of any who shall die or refuse or neglect to serve, or be incapable of serving, or be removed. * * * If, in any particular, it shall at any time be found necessary to amend any pleading or proceeding, or to supply any defect arising in the course of any special proceeding authorized by this act, the same may be amended or supplied in such manner as shall be directed by the Supreme Court, which is hereby authorized to make such amendment or correction."
It seems clear that such provisions apply to irregularities and omissions in proceedings properly instituted and have no force and effect upon the limitation and the condition precedent heretofore set forth.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.