#### In the Matter of the Application of the City of New York, Relative to Acquiring Title, etc., for the Opening and Extending of Ely Avenue, etc. City of New York, Appellant; Isabella Jane New and Others, Respondents.

Second Department,

June 17, 1915.

Municipal corporation — city of New York — acquisition of land for the purpose of extending and opening street — appointment of commissioners of estimate denied, where actual purpose is to construct elevated railway.

Where, under section 970 of the charter of the city of New York, the board of estimate and apportionment votes that it deems it for the public interest that the title to certain lands should be acquired for the opening and extending of a street, the application of the city for the appointment of commissioners of estimate and a commissioner of assessment should be denied, where it appears that the actual purpose of acquiring title to the land is for the construction of an elevated railway.

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 county of Queens on the 23d day of December, 1914, denying its application for the appointment of commissioners of estimate and a commissioner of assessment herein.

*Joel J. Squier [James Regan Fitz Gerald*and *Frank L. Polk*with him on the brief], for the appellant.

*John Larkin [Ralph S. Hull*with him- on the brief], for the respondents.

*868Putnam, J.:

Under section 9'70 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1913, chap. 329)* the board of estimate and apportionment voted on December 4, 1913, that it deems it for the public interest that the title to the lands and premises required for the opening and extending of Ely avenue from Jackson avenue to Nott avenue should be acquired by the city of New York. This resolution continued: “Resolved, That the title to be so acquired is hereby determined to be a title in fee in such premises.” The corporation counsel was instructed to apply to the Special Term of the Supreme Court for the appointment of commissioners.

The board of estimate then fixed the area of assessment for benefit. Under section 994 of the city charter it authorized the acceptance of deeds of cession to land lying, within the lines of the street. The usual petition by the corporation counsel followed, showing the requisite notice of application.

The outstanding feature is the disclosure that the proceeding, while nominally to “ open ” an old street and to correct some of its boundary lines, is. in fact to prepare for placing through these blocks a section of a rapid transit line, being part of the system of elevated roads.

"When this appeared the court denied the motion to appoint commissioners, from which the city has appealed.

The difficulty here is the actual purpose of this taking, according to the moving papers. It is to prepare for a new rapid transit railway, to be built in Ely avenue, which is to be part of the Steinway tunnel rapid transit extension. The engineer of the board of estimate advised the immediate approval of the map, so as to “avoid delay in the railroad construction.” Mr. Raisman, an engineer of the Public Service Commission, states in his affidavit:

“The part of the Rapid Transit line which runs along said Ely avenue is known as Route No. 50. The type of railroad to be built is that of an elevated railroad, which will be supported by columns, placed generally on the curb lines of the said avenue. These columns will support girders which will carry the tracks, platforms and other structures of the rail*869road, and will be so placed that there will be a clearance or head room underneath the said girders of not less than 14 feet to the surface of the roadway of said avenue.”

The Legislature has wisely empowered the city of New York by condemnation to take either an easement or a fee. (Greater New York Charter, § 970, as amd. *supra.)*This is not only because a uniform municipal ownership in fee of streets (as already exists in the streets from old Dutch highways) might simplify urban rights, but doubtless in view of the greatly increased uses “ in, over, upon or under ” metropolitan streets. If the question were reviewable by the courts, much maybe said for the greater dignity, permanence and artistic effect of streets and highways owned in fee and, therefore, fully controlled by the authorities, as has been the immemorial practice of countries under the civil law. *(Mitchell*v. *Bass,*33 Tex. 259.)

By usage derived from England, the public has but a bare right of passage, under the theory which favored the proprietary right of the lord of the manor, as against the continental idea of a public thoroughfare owmed, laid out, improved and embellished by the State.

Here the petitioner’s difficulty is not as to taking a fee. It is the method of such acquisition and who pays the bill. These proceedings theoretically are to be local benefits. The cost incident to the commission, and even of the maps copied from the borough topographical bureau, are to be assessed back on lot owners.

A street use (under the city charter, § 990, as amd. by Laws of 1913, chap. 142) is to be “kept open for, or as part of a public street, forever, in like manner as the other streets in the city are and of right ought to be.”

Where these purposes are strictly pursued, the process of assessing the cost back upon the lot owners as “benefits” may be excessive. However, in the opening of what is to remain a street, the board of estimate acts are legislative and beyond court review. But their power is confined to local street purposes, as contrasted with objects for the entire municipality. Plainly the court is bound to withhold approval from a proceeding which, instead of being based on a real street purpose, is taken with the object of bringing in an elevated railroad structure spanning from curb to curb along a street already opened, *870accepted and (save in respect to an insignificant strip) virtually dedicated to the municipality.

The order should he affirmed, with ten dollars costs and disbursements.

Jerks, P. J., Thomas, Carr and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.

*

 See Laws of 1915, chap. 606; Id. § 8.— [Rep.