App. Div.]

FIRST DEPARTMENT, NOVEMBER, 1904.

66

front of the two lots? I think so. The presumption is that a conveyance of land bounded by an existing street carries the fee to the center of the street. (Mott v. Mott, 68 N. Y. 252; Matter of Ladue, 118 id. 219; Haberman v. Baker, 128 id. 257.) A grantor of land abutting on a highway may reserve the highway from his grant, but the presumption in every case is that the grantor did not intend to retain the highway, and such reservation will not be adjudged except when it clearly appears from the nature of the conveyance that it was intended. (Kings County Fire Ins. Co. v. Stevens, 87 N. Y. 291.) In Lozier v. New York Central R. R. Co. (42 Barb. 469) the court said: "If it is the intention of the grantor who conveys lots having streets along them to exclude the streets, his description must be clear and certain showing such intention." In that case the deed described the property as village lots Nos. 11, 15, 17 and 19, on the north side of Green Street," and it was held that the grantee took to the center of the street. The same rule was applied in Greer v. N. Y. C. & H. R. R. R. Co. (37 Hun, 346) where the lots were described as situated on "the west side of North Market Street." John Hopper, Jr., died in 1819, leaving him surviving his widow and three grandchildren, the children of his deceased daughter Mary Striker. He left a will dated September 10, 1815, by which he disposed of all his real estate. This will received a construction in Striker v. Mott (28 N. Y. 82). The plaintiffs are the descendants of the testator, and, as such, are entitled to undivided interests in the bed of the old Bloomingdale road lying between the said lots 6 and 6, and as it existed prior to 1847, unless the interests they might otherwise claim have been alienated or extinguished by grants or proceedings hereinafter referred to.

It may be mentioned here that, although the commissioners appointed under the act of 1703 laid out a road four rods in breadth, running northerly from the end of New York lane through the Bloomingdale district or division, the actual breadth of the road was but two rods at the time of the Hopper partition in 1784. This appears by the Bancker map, on which the road is represented as fifty links in width. The reduction in width seems to have been effected by proceedings authorized by and taken under the act of 1751 above referred to. (Blackman v. Riley, 138 N. Y. 327.)

In 1787 an act (Chap. 61) was passed entitled “An Act for the better regulating the public roads in the city and county of New York." The mayor, aldermen and commonalty were made commissioners "to regulate and keep in repair the present public roads or highways, and to lay out, regulate and keep in repair such other public roads or highways as shall hereafter be laid out in the said city and county." They were authorized and empowered to widen or alter all public roads and highways already laid out in said city and county to such convenient breadth, not exceeding four rods nor less than two rods, as they should judge fit to make them passable for horses and carriages. It was provided that if in widening or altering any such road or highway they should take or require for such purpose the lands of any person or persons, notice should be given to the owners; and that if the commissioners and owners should not agree as to the amount of compensation to be paid for the lands so taken, a jury should be summoned who should "inquire of and assess such damages and recompence as they shall, under all the circumstances, judge fit to

FIRST DEPARTMENT, NOVEMBER, 1904.

*

*

[Vol. 97.

be awarded to the owner or owners of such land, according to their several and respective interests and estates in the same;" and it was declared that the verdict of such jury and the judgment of the Mayor's Court thereon, and the payment or tender of the sum or sums so awarded to the owner or owners, should be binding "to all intents and purposes against the said owners and their respec tive heirs, executors, administrators and assigns, claiming any interest or title in or to the same land, and shall be a full authority to the said commissioners to cause the said land to be converted to, and used for the purposes aforesaid."

It is in evidence from the proceedings of the common council that on May 14, 1793, on the report of the committee on the Bloomingdale road, it was ordered "that the said road from its commencement at Horns house to Nicholas De Peyster barn be immediately opened to its proper & legal width of four rods," and Aldermen Furman and Campbell were appointed a committee "to attend to the opening of the said road." In September, 1797, a petition was presented to the common council praying for the opening of Bloomingdale road to its proper width of four rods, and it was "Ordered that Aldn Furman, Beekman & De la Montagnie be a committee to direct the proprietors of the land where the road is not of its proper width to remove their fences, & then to direct the Road Master to work & put the road in good order." When the road was actually widened has not been shown. It was prior to 1819, for it is not disputed, I believe, that by the Randel map made in that year, and by the Doughty map made in the year following, the width of the road is shown to have then been about sixty-six feet. The learned counsel for the defendant claims that there was no authority for the widening except the act of 1787 above referred to, and that, therefore, it must be presumed that the work was done under that act; and also that the act contemplated the taking by the city of the fee of any land required for the opening or widening of any road opened or widened under its provisions. There is no evidence that any proceedings whatever were taken under the act of 1787 for the widening of Bloomingdale road. Even if the presumption be as counsel contends, it is not important, as the courts seem to have decided adversely to his latter claim. (Van Amringe v. Barnett, 8 Bosw. 357, 372; Deering v. Reilly, 167 N. Y. 184, 191 )

On May 5, 1847, an act (Chap. 203) was passed entitled "An Act to lay out a new street in the twelfth ward of the city of New-York, and to keep open a part of the Bloomingdale road in said city." It affected a parcel of land described with great particularity, beginning at the southwesterly corner of the Seventh avenue and Forty-fifth street, and extending by various courses to the Tenth avenue and Seventy-first street, and thence by various courses to the place of beginning, and such land was declared "for all legal purposes to be one of the streets of the said city in like manner as if the same had been so laid out by the commissioners appointed in and by the act entitled 'An act relative to improvements touching the laying out of streets and roads in the city of New-York, and for other purposes,' passed April 3, 1807." It is, I believe, admitted that the Bloomingdale road as it existed in 1847 was wholly within the boundaries of the parcel of land referred to. At all events, between Fifty-second and Fifty-third streets the westerly boundary line of the said parcel was located

App. Div.]

FIRST DEPARTMENT, NOVEMBER, 1904.

several feet to the west of the westerly line of the then existing road, and the easterly boundary line was located to the east of the easterly line of said road, at a distance from said easterly line of one foot and three inches at the northerly side of Fifty-second street, and of five feet and nine inches at the southerly side of Fifty-third street.

The common council proceeded promptly to lay out the new street. They resolved that "the Bloomingdale Road from the Seventh Avenue to the Tenth Avenue be opened according to law, and that the Counsel to the Corporation take the necessary measures for that purpose;" and on the 1st day of June, 1847, on the petition of the mayor, aldermen and commonalty, the Supreme Court, sitting at Albany, granted an order appointing three commissioners of estimate and assessment for the purpose of carrying the said act of May fifth into effect. Notice of the intention to present such petition to the court, and of the object thereof, was duly given by publication and posting, as required by section 9 of chapter 209 of the Laws of 1839. On the 16th of July, 1847, the said commissioners duly qualified, and thereafter various proccedings were taken by and had before them, all of which, together with their awards for damages and their assessments for benefits and descriptions of property required to be taken for the purpose of said improvement, were set forth in their report to the Supreme Court dated the 5th day of March, 1849.

On behalf of the plaintiffs, objections are made to the validity of these proceedings. In the first place, attention is called to the settled rule that where it is attempted to take lands from the owner by statutory proceedings, the require ments of the statute must be strictly complied with, or the proceedings go for nothing. (Doughty v. Hope, 3 Den. 594; People v. Hulburt, 46 N. Y. 113; Matter of City of Buffalo, 78 id. 362.) It follows, of course, that the burden of showing strict compliance is upon the party claiming under the proceedings. (Sharp v. Speir, 4 Hill, 76.) One objection alleged is that "the proceedings were void because there is no proof that the Common Council duly authorized the same." The proof is that the resolution above referred to was adopted by the board of aldermen on May 6, 1847, and by the board of assistant aldermen on the same day, and was approved by the mayor on the day following. But the point of the objection is this, that by section 7 of an act entitled An Act to amend the Charter of the City of New York," passed April 7, 1830 (Chap. 122), it is provided that all resolutions which shall recommend any specific improvement "involving the appropriation of public monies, or taxing or assessing the citizens of said city," shall be published immediately after the adjournment of the board in all the newspapers employed by the corporation, and that whenever a vote is taken in relation thereto, the ayes and noes shall be called and published in the same manner." The resolution in question was not so published, nor, when the vote was taken, were the ayes and noes called and published in the manner prescribed by the act. My opinion is that it was not necessary to do either; that the resolution of May sixth was sufficient in form and was properly adopted and approved; that it did not recommend an improvement "involving the appropriation of public monies, or taxing or assessing the citizens" of the city within the meaning of said section 7, and that, therefore, the objection should not be allowed.

FIRST DEPARTMENT, NOVEMBER, 1904.

[Vol. 97. A second objection is that the notice of the application for the appointment of commissioners of estimate and assessment was insufficient, in that it did not state "the nature and extent of the intended improvement," as required by section 2 of the act of 1839. It was stated in the said notice "That the nature and extent of the improvement intended is the opening of the Bloomingdale Road in the said City from the Seventh Avenue to the Tenth Avenue." The same point was made and was sustained in Matter of Commissioners of Central Park (51 Barb. 277), and the court, referring to the provision of said section 2, said: “Under this provision I think it is necessary that the whole extent of the intended opening should be stated in the notice. The owners are to be informed by it what property is to be taken.” Certainly, there was nothing in the published notice in question that informed the owners of property along the line of the Bloomingdale road what, if any, portion of their property would be required for the contemplated improvement. Counsel argues that the act of 1847 was referred to in the notice, and that the law presumes that every citizen knew what the act provided, and so knew the boundaries of the land which it was proposed to take, and that, therefore, the statement in the notice of the nature and extent of the improvement was quite sufficient. He is mistaken as to the fact. The notice made no reference to the act, but if it had, it would not have satisfied the rule declared in the case last cited. In that case the notice contained a general description of the property included in the proposed improvement as shown and delineated on a certain map of the same made by Gardner A. Sage, city surveyor, and now on file in the office of the Commissioners of Central Park." The court said (p. 304): “A reference to a map on file in some public office is not a compliance with the statute." A third objection is that the commissioners of estimate and assessment did not give such notice of making their report as the act of 1839 prescribed, because the notice given by them did not require parties or owners affected to present their objections to the commissioners. Section 5 of the act of 1839 provided that any person or persons whose rights might be affected by the estimate and assessment, and who should object to the same, might, within thirty days after the first publication of the notice referred to, state his, her or their objections in writing to the said commissioners." The notice as published requested all persons who might be opposed to the estimate and assessment to present their objections to "John R. Maurice, Esq., the Chairman of the said Commissioners," at his residence in Spring street. There is no merit in this objection. The statute declares to whom an objecting party must state his objections. It does not require the commissioners to give any notice of the time when or place where or the persons to whom such objections must be presented. Herein the case differs from Adriance v. McCafferty (2 Robt. 153). In that case the statute (Laws of 1841, chap. 171, § 1) expressly provided that the notice to be given should contain a request for all persons * to present their objections

*

in writing to the chairman of the commissioners or assessors." It was held that a notice requiring objections to be presented to “ the undersigned" (the assessors) did not satisfy the statute.

A fourth objection is that there is no legal proof that the report of the commissioners was confirmed by the court. The burden of showing confirmation was

App. Div.]

FIRST DEPARTMENT, NOVEMBER, 1904.

upon the defendant. By section 178 of chapter 86 of the Revised Laws of 1813 confirmation was required to be "by rule or order." No such rule or order has been produced. There is no direct proof that any was ever made. None has been found in the office of the county clerk, though diligently searched for. The defendant, however, insists that the fact that the court did make an order confirming the report is clearly established by the proofs he has offered, which consist of the following:

--

First. Testimony of Mr. Harkness that about December, 1900, he examined the report of the commissioners, and that there was then a cover (now missing) on such report, on which was written "The foregoing report of the commissioners confirmed by the Supreme Court in General Term, March 31, 1849. James Connor, Clerk." It is proved that James Connor was at that date clerk of the county of New York. When or by whom the said indorsement was written

does not appear.

Second. An entry in a book produced from the office of the commissioner of public works entitled- "Assessment Ledger C. Openings. Street Commissioner's Office." On page 12 of the said book, under the heading - "Broadway opening from Seventh to Tenth Avenues" is a summary statement of assessments and awards, and then the following: "Confirmed by the Supreme Court March 31, 1849. Ordered open by the Common Council August 1, 1849. Awards payable December 1, 1849."

Third. An entry in a book produced from the bureau of the collector of assessments and arrears entitled "Assessments. Avenues and Streets. 1839 to 1853.

Street Commissioner's Office." On pages 334 to 400 inclusive is contained an amended abstract of the estimates and assessments of the commissioners appointed "In the matter of the application of the Mayor, Aldermen and Commonalty of the City of New York, relative to the opening of Bloomingdale Road from the Seventh to the Tenth Avenue in the Twelfth Ward of said city"—and at the foot of page 400 is written- Confirmed March 31, 1849.

Ordered open August 1, 1849. Abner Sandford, Collector."

Fourth. Publication of the confirmation of the report by the court in the list of decisions of the General Term printed in the daily papers, to wit, in the Evening Post of March 31, 1849; in the Herald of April first, and in the Tribune and Morning Express of April second.

Fifth. Resolution-adopted by the board of assistant aldermen on July 12, 1849, and by the board of aldermen on July sixteenth, and approved by the mayor on July eighteenth" that the actual widening of Bloomingdale Road between Seventh Avenue and Tenth Avenue take place on the first day of August next ensuing, and that Abner Sandford be, and he is hereby, appointed to collect the assessments laid for that purpose."

Sixth. Payment by the city to parties damaged by the opening of the damages awarded, and payment to the city by parties assessed for benefit of the sums assessed.

Passing by the question of the competency of these items of evidence, and giving to them all the probative force that can reasonably be claimed for them, they show that the application to confirm the report of the commissioners was