#### In the Matter of the Application of the City of New York Relative to Acquiring Title, etc., to Juniper Avenue from West Side of Grand Street to Metropolitan Avenue, etc. In the Matter of the Application of Jere Johnson, Jr., Company, to Refer to the Commissioners of Estimate and Assessment to Ascertain and Report the Compensation which Should be Justly Made for the Discontinuance and Closing of Juniper Avenue in the Borough of Queens, City of New York. City of New York, Appellant; Jere Johnson, Jr., Company, Respondent.

Second Department,

May 8, 1914.

Municipal corporations —street opening, city of Mew York — questions as to whether former road was public street and has been legally closed are jurisdictional — powers of commissioners—damages — when damages accrue.

The questions as to whether a former road was a lawful public street in the city 'of New York, and as to whether it has been legally closed, must be determined by the court itself before the matter can be referred to commissioners to ascertain damages. The power to determine these questions cannot be delegated to the commissioners.

The damages should be fixed as of the day when the first street bounding the block was actually physically opened for public use, and claims for damages are premature if filed before that time. The damage is the damage to the owner who has the title to the abutting property when the street becomes legally closed.

Hence, in order that damages should accrue upon the filing of sections of the final maps, it is necessary that such sections should show, bounding the block in which the respondent’s property is situated, an open public street as one of the streets to be retained on the permanent map of the city.

Although a part of a former road is to be included in a new avenue, it cannot be held that the right to damages has accrued upon the ground that so much of the old road as is included in the new road is actually physically opened.

Rich, J., dissented.

Appeal by the City of New York from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the comity of Queens on the 6th day of August, 1913, directing that the claim of Jere

*292Johnson, Jr., Company be referred to the commissioners of estimate and assessment herein as prayed for in the respondent’s petition.

*James Regan Fitz Gerald [Joel J. Squier*and *Archibald R. Watson*with him on the brief], for the appellant.

*Benjamin Trapnell,*for the respondent.

Per Curiam:

The respondent’s grantor was the owner of a parcel of land having a frontage of some 800 feet on the southwesterly side of a highway in the borough of Queens, known locally as Juniper Swamp road, and referred to in this proceeding as Old Jumper avenue. This road, approximately 50 feet in width, had been used as a highway for a great many years, hut to the bed thereof neither the city of New York nor any of the municipalities which it succeeded had ever acquired the fee.

In the year 1908 a permanent street system was planned for the area which included this old road, and section IV of the final maps of the borough of Queens, showing such street system, was approved, adopted and filed. This map provided for a new thoroughfare, to be known as Juniper avenue, to be eighty feet in width, to lie partly within and partly without the bounding lines of Juniper Swamp road, and to be from one to four feet higher in grade.

After the filing of the map the respondent presented a petition wherein it prayed for an order, pursuant to section 14 of chapter 1006 of the Laws of 1895, directing that the commissioners of estimate and assessment, appointed to acquire title to land in Juniper avenue, be authorized to ascertain and determine the compensation which should justly be made to the petitioner by reason of the discontinuance and closing of Juniper Swamp road, and that the commissioners include the award of damages therefor in their report. The motion having come on to be heard, the Special Term made an order the decretal part of which reads.

“Ordered, That the claim of Jere Johnson, Jr., Company, the petitioner herein, be and the same hereby is referred to the said Commissioners of Estimate and Assessment to take proof *293relative to the said claim, and *if, upon proof of all the facts, the said Commissioners shall find that said Juniper Avenue was a lawful public street and had been legally closed,*the said Commissioners be and they hereby are directed to ascertain and determine the compensation, if any, to which the said claimant is legally entitled for the loss and damage, if any, sustained by or in connection with the premises described in the said petition, by reason of the closing, discontinuance and abandonment of said Juniper Avenue, in front of and adjoining said premises, and to make a separate award therefor, in the report to be made by them, pursuant to Chapter 1006 of the Laws of 1895.”

From this order the city appeals.

The order delegates to the commissioners the duty of determining whether Juniper Swamp road was a lawful public street and that it had been legally closed. The establishment of these propositions is jurisdictional, and they must be determined by the court before a reference to the commissioners to ascertain and determine compensation. (Laws of 1895, chap. 1006, § 4.) The order was made, therefore, without statutory authority.

The damages should be fixed as of the date when the first street bounding the block was actually physically opened for public use, and claims for damages filed before that time are prematurely filed. The damage is the damage of the owner who has title to the abutting property when the street becomes legally closed. *(Matter of Mayor, etc. [Walton Avenue],*131 App. Div. 696, 712, 721; affd., 197 N. Y. 518; *Matter of Mayor, etc. [East 172d Street],*141 App. Div. 623, 624.) In order, therefore, that damages should accrue upon the filing of section 17 of the final maps, it was necessary that such section should show, bounding the block in which the respondent’s property is situated, an open public street as one of the streets to be retained on the permanent map of the city. The section map does not show that. Juniper avenue has not been actually physically opened, and there is no claim that any other street or avenue has been.

The petitioner contends that because a part of Juniper Swamp road is to be included in the new Juniper avenue, so much at least *294of the new Juniper avenue as lies within the bed of Juniper Swamp road is actually physically opened, and that, therefore, the right to damage has accrued. It seems to us that the argument is not well founded. If the inclusion of any portion of an old street within the lines of a new street is sufficient to make that new street physically open as to such included portion, the argument would be the same whether the portion so included was a foot wide or five feet wide, or, as in this case, nearly twenty feet wide. If the lines and grade of the new Juniper avenue were identical with those of the old thoroughfare, it might then be said that the street had been physically opened, within the meaning of the statute, so as to give rights under the statute to an owner of property within the block on which it abuts. This was the case of Jerome avenue in *Matter of Walton Avenue (supra).*But we think.it would be a dangerous construction to hold that if the permanent map, as filed, showed any portion, no matter how small, of the existing public street to be included within the boundaries of the new street, as laid down on said map, immediately it could be said by reason thereof that the street laid down on the new map had been opened within the meaning of section 2 of the statute, so as to give the then abutting owner an immediate right to damage.

No particular burden will be imposed upon the petitioner by compelling it to wait until the pending proceedings for the opening of Juniper avenue shall have been completed, or until that street or any other street bounding the block shall have been actually physically opened. Having taken this position successfully, the city would be estopped from claiming that the Statute of Limitations had run against its claim, or that the statute began to operate before the completion of such proceedings. If, in the meantime, the petitioner does not transfer its property, its right to damages will accrue. If it does transfer, the city will be spared the possibility of having to pay damages twice.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Burr, Stapleton and Putnam, JJ., concurred; Rich, J., read for affirmance; Thomas, J., not voting.

*295Rich, J.

(dissenting):

I dissent. It is conceded that Juniper Swamp road was a lawful public street and had existed as such for more than twenty years, and it is shown by the map that for a distance of about seven hundred feet along the front of petitioner’s land the southwest line of Juniper Swamp road is moved to the east away from petitioner’s land a maximum distance of about fifteen feet. It is conceded that the remainder of the highway, thirty-five feet in width, is continued as a part of the new street, is used and was being used as a public street when the map was filed. The fifteen-foot plot is not included in “ Juniper avenue ” as laid out on said map. It lies between petitioner’s land and the boundary of said avenue, and it became legally closed when the map was filed.

The intent to discontinue and close so much of the highway as is represented by this strip of land is not denied, the respondent’s easement in the closed strip is extinguished, and the title thereto will revert to the former owner in fee. I think that the respondent’s claim for the damage sustained is enforcible now. The sole dispute and the controversy here relates to the date when the closing occurred. If the street was in fact legally closed, I do not regard it essential to the appointment of commissioners that the fact be judicially determined in advance. It is sufficient if such a determination is made dun ing the pendency of the proceeding.

The purpose and effect of the statute under consideration is stated in *Matter of City of New York (Walton Avenue)*(145 App. Div. 855; affd., 204 N. Y. 670), and the rule with which the respondent must comply is stated in *Matter of Mayor, etc. (Spuyten Duyvil Road)*(152 App. Div. 114, 117; affd., 208 N. Y. 592) in the following language: “In order to justify an award to any property owner under the section above quoted it is essential that he shall establish the jurisdictional facts which entitle him to this particular relief, that is to say, that the public authorities have instituted a proceeding for opening a street or public place contiguous to or in the neighborhood of a lot or parcel of ground, owned by the petitioner or in which he has an interest, and which fronts upon a street or other public place which they (the public authorities) c *have discontinued*
      *296
      *and closed as*aforesaid.’ It is as essential that the street or public place shall *have been*closed and discontinued as that the petitioner’s property shall front on the closed or discontinued thoroughfare.”

If the Juniper Swamp road had been continued permanently, as it then existed, as a highway, and, as such, part of the adopted permanent street system, the filing of the final map operated to immediately close all streets shown as discontinued in the several blocks bounded by it. This I understand to be the precise rule declared in *Matter of Mayor, etc. (Walton Avenue)*(131 App. Div. 696; affd., 191 N. Y. 518), in which the contention of the city was practically the same as in the case at bar.

I am unable to concur in the contention that the intent of the statute is, that in order to have a continued street given that effect, it must be a street of the same dimensions as to width as the one shown on the final map, and it must also be of the same elevation as to grade. In the case of *Matter of City of New York*(192 N. Y. 459) the court establishes the test of the closing of the discontinued street as being the actual physical opening of the proposed permanent street. I think a street within this rule is opened when it is available for public travel and affords access between its commencement and termination, and the continued portion of the J uniper Swamp road satisfies this test. I do not understand the city to dispute the contention that there was, or is to be, a closing of the Juniper Swamp road so far as that portion of its roadbed lying between the boundary line of the new J upiter avenue and the front of respondent’s property is concerned. Such a contention could not be sustained *(People ex rel. Winthrop*v. *Delany,*120 App. Div. 801; affd. *sub nom. People ex rel. Winthrop*v. *Pendleton,*192 N. Y. 533), and I must vote to affirm the order.

Order reversed, with ten -dollars costs and disbursements, and motion denied, with ten dollars costs.