(183 N.Y.S.)

On a motion by the defendant, made in the separation action after the reversal of the decree, for a restitution of alimony previously paid under the decree, I had occasion to consider the nature of alimony, and concluded that it was not "really the subject-matter of an action," but was merely "an incident to the judgment," and that from one point of view it might be regarded as "having been paid, not merely in satisfaction of the judgment, but in fulfillment of the duty of the husband to support his wife and children until the relation upon which that duty depends has been dissolved by a final judicial determination." See Averett v. Averett, 110 Misc. Rep. 584, 181 N. Y. Supp. 645, affirmed without opinion in the Appellate Division April 23, 1920 (191 App. Div. 945, 181 N. Y. Supp. 927).

It seems to me that the same considerations require a reversal of this judgment. The checks were given, either in payment of, or to represent, the amount of alimony due under a decree of the court, subsisting and valid at the time the checks were given and at the time they were due. The same reasoning which denies to defendant the right to restitution of similar alimony paid by him forbids our regarding the consideration for these checks, namely, the alimony represented thereby, as having failed or been otherwise impaired by reason of a subsequent reversal of the decree.

Judgment reversed, with $30 costs of this appeal, and judgment directed in favor of plaintiff, with appropriate costs in the court below. All concur.

(192 App. Div. 438)

SCHEIBEL v. BURR, Corp. Counsel.

(Supreme Court, Appellate Division, Second Department. June 25, 1920.) 1. Eminent domain 124-Right to compensation accrues when street is physically closed.

The right to compensation accrues to an abutting property owner when a street is physically closed, and the owner does not have to keep track of maps filed, but merely to keep informed of what is going on in the street itself.

2. Limitation of actions ~67-Map did not close street, so as to start running of limitations against action for damages.

A map filed by the town survey commission, formed by Laws 1869, c. 670, did not condemn or close streets then existing, and was not such a map as was contemplated in the Street Closing Act, and the filing of the map did not start the running of limitations against the right of property owners to bring proceedings to recover compensation for the closing of the street.

3. Limitation of actions 67-Abutting owner's right of action for damages for closing of street accrued on physical closing of street.

Proceeding brought by an abutting landowner for damages for closing of street, 14 years after the street was physically closed by the construction of a curb across it, was barred by the statute of limitations.

Appeal from Special Term, Kings County.

In the matter of the application of Christian Scheibel for a peremptory writ of mandamus, directed to William P. Burr, as Corporation Counsel of the City of New York, to require him to institute proceed

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 183 N.Y.S.-4

ings under the Street Closing Act to determine the compensation due Scheibel for the closing and discontinuance of Stewart avenue, originally in the town of New Utrecht. From an order (108 Misc. Rep. 551, 177 N. Y. Supp. 881) directing the peremptory writ to issue, the Corporation Counsel appeals. Order reversed on reargument, and petition denied.

Argued before JENKS, P. J., and MILLS, PUTNAM, BLACKMAR, and KELLY, JJ.

Patrick S. MacDwyer, of New York City (William P. Burr, Corp. Counsel, of New York City, and Joseph A. Solovei, of Brooklyn, on the brief), for appellant.

Frederick W. Hottenroth, of New York City (Arthur D. Lyons, of New York City, on the brief), for respondent.

PUTNAM, J. By a map filed in 1839 the streets, avenues, and public squares of the Sixth, Seventh, Eighth and Ninth wards of the former city of Brooklyn were laid out in a regular numbered series extending to the New Utrecht town line. New Utrecht then had the few streets and roads of an agricultural community. Among such streets was Stewart avenue, first shown on a map of property of the heirs of Jane Smith, filed in 1834 with the clerk of Kings county. It was subsequently laid out and extended by a special act. Laws 1843, c. 47.

A town survey commission of Kings county was formed by Laws 1869, c. 670. The supervisors of the five county towns and William J. Osborne, chairman of the board of supervisors of said county, were made a board of commissioners to lay out a permanent street plan for those towns-"conforming to the avenues and streets and plan of the city of Brooklyn, as now terminated at the city line, as nearly as may be practicable and judicious" (section 4). The commission could not condemn land, or close streets then existing, but only lay out and design a plan to aid in establishing a system of roads and streets as the same might from time to time be taken and dedicated to public use in the future expansion of the environs of Brooklyn. Matter of City of New York (Saratoga Ave.) 226 N. Y. 128, 123 N. E. 197. Existing streets were not to be closed. The map filed by such commission, showing such plan for New Utrecht, bore a notation, stating:

"Existing street and road lines and property lines are dotted, property lines and names being taken without search of title and approximately correct."

The word "names" meant the designation of landowners, as the existing streets and roads were not named on such maps. The route of Stewart avenue was shown by dotted lines extending toward Ft. Hamilton. It intersected Seventy-Third and Seventy-Second streets, between Sixth and Seventh avenues. The town survey commission filed such map on June 17, 1874.

Stewart avenue long continued an opened, traveled street. On March 31, 1892, petitioner acquired a lot at the corner of Stewart avenue and Seventy-Third street of about 89 feet on Stewart avenue with a breadth of 40 feet, including the grantor's rights in and to Seventy

(183 N.Y.S.)

Third street and Stewart avenue lying in front of and adjoining said premises, to the center lines thereof, respectively. Seventy-Third street had been laid out by petitioner's grantor, but had not yet been acquired by the municipality. The petitioner built a house on half his lot, and continued to occupy these premises. His bills for taxes thereon described the lot as situate on Stewart avenue.

The town of New Utrecht had acquired, as public streets, Seventh avenue on March 31, 1891, and Seventy-Second street on June 18, 1894. On July 1, 1894, New Utrecht became part of Brooklyn. Laws 1894, c. 451. Section 10 thereof provided that all streets as fixed by the maps duly made and filed should be continued as streets of the city. It was made part of Greater New York on January 1, 1898. Laws 1897, c. 378. Petitioner's premises are now known as lot No. 74, in block 5911, Thirtieth ward of the borough of Brooklyn.

In the grading of Seventy-Second street, completed. December 30, 1902, curbstones were placed along the crossing over Stewart avenue, so as to close it to vehicles, and by grading work completed June 1, 1904, the city likewise carried the Seventy-Third street curbing across Stewart avenue. Thus Stewart avenue became physically closed, and its lines obliterated. Over 14 years after such physical closing, and on July 22, 1918, petitioner filed with the comptroller of the city of New York a written statement of claim and demand for compensation. Thereupon, on October 21, 1918, he applied for a writ of mandamus. to require proceedings taken under the Street Closing Act (Laws 1895, c. 1006) to ascertain the petitioner's compensation by reason of the closing and discontinuance of Stewart avenue. The order appealed from granted such relief.

The Street Closing Act (Laws 1895, c. 1006), which purported to apply to cities of more than 1,250,000 inhabitants, authorized the local authorities to make and file a map or plan showing new or altered streets or avenues,

"omitting therefrom all such former streets, avenues, roads, highways, alleys, lanes and thoroughfares which they may determine to discontinue or close. Upon and after the filing of such map, the streets, avenues and roads shown thereon shall be the only lawful streets, avenues, and roads in that section of such city shown upon such map or plan, and all other former streets, avenues, roads, highways, alleys, lanes and thoroughfares theretofore laid out, dedicated or established not shown thereon, and which are not then actually open or in public use, shall from and after the filing of such map or plan cease to be or remain, for any purpose whatever, a street, avenue, highway, road, alley, lane or thoroughfare."

The act also declared:

"The provisions of this section shall apply to all streets, avenues, roads, highways, alleys, lanes and thoroughfares or parts or portions thereof which have not been retained or shown upon any map or plan heretofore made and filed by or on behalf of the local authorities of such city as part of the permanent system of public streets, avenues, roads, public squares and places in and for that part of such city included within the district laid out upon such map or plan, and which have not been thereafter re-established by law or relaid out or otherwise thereafter lawfully laid out and established."

Section 5 allowed a property owner affected by such a closing of the street, to present a claim to the comptroller "within six years after

the filing of such map." It was held that without notice to the occupant such a limitation was unconstitutional. Matter of City of New York (Grand Boulevard) 212 N. Y. 538, 106 N. E. 631; Matter of City of New York (Newton Avenue) 219 N. Y. 399, 114 N. E. 837. In Matter of City of New York (Grand Boulevard), Judge Cardozo said of this 6-year limitation in the Street Closing Act:

"It does not require that owners be notified of the filing of the map by which their rights are to be extinguished. It does not confine itself to a provision that the filing of the map shall ipso facto work an appropriation of their interest in the land. * The statute, however, goes farther and declares that the mere lapse of six years, following the filing of the map, shall, regardless of notice to the owners, bar their right to compensation. It does not avail them that they have remained in undisturbed possession of their lands and unchallenged enjoyment of appurtenant easements." 212 N. Y. 543, 544, 106 N. E. 632.

As has been shown, the map of the town survey commission had no such effect. It dedicated no new street and closed no existing street. The part of Stewart avenue here involved was closed when the eity physically carried the curbs of Seventy-Second and Seventy-Third streets across its lines, thereby closing it to vehicles, and probably at the same time unburdening the petitioner's half of the appurtenant street bed from any public easement.

[1] When the street is thus physically closed, the right to compensation accrues. The owner does not have to keep track of maps filed, but merely to keep informed of what is going on alongside his house. In Matter of City of New York (Newton Avenue) supra, a map filed in 1895 purported to discontinue the Albany post road. But it remained open and in use till August, 1914, when the post road was crossed by 254th street at so high a grade as to bar entrance to the post road. Promptly in 1915, after this physical invasion of their easements, the lot owners took proceedings. The limitation of the time within which to present a claim after such invasion, therefore, was not there presented for decision.

[2, 3] I conclude, therefore, that the map filed by the town survey commission in 1874 was not such a map as was contemplated in the Street Closing Act (Laws 1895, c. 1006); further, that any remedy of the petitioner for compensation for the closing of Stewart avenue has been barred by the statute of limitations, which began to run at the time such street was closed. People ex rel. Chedsey v. City of New York, 105 Misc. Rep. 119, 172 N. Y. Supp. 644; People ex rel. Nelson v. Marsh, 82 App. Div. 571, 81 N. Y. Supp. 579, affirmed 178 N. Y. 618, 70 N. E. 1107. As this period before filing this claim exceeds 14 years, it is unnecessary to decide whether the 6-year (C. C. P. § 382) or the 10-year (C. C. P. § 388) limitation applied.

I advise, therefore, that the order be reversed, with $10 costs and disbursements, and the petition be denied, with $50 costs. All concur.

(183 N.Y.S.)

(111 Misc. Rep. 211)

TROWBRIDGE v. MALEX REALTY CORPORATION et al. (Supreme Court, Special Term, New York County.

March, 1920.)

1. Mortgages 401 (1) -Acceleration of maturity clause valid.

A stipulation that at the mortgagee's election the whole principal sum and accrued interest should become immediately due on default in payment of any installment of the principal or interest after 20 days from a stated date was valid and enforceable, and a similar stipulation as to default in payment of taxes and assessments for more than 30 days after notice or demand was also valid and enforceable.

2. Mortgages 380-Foreclosure is equitable in its nature.

The foreclosure of a mortgage is equitable in its nature, although based on legal rights, and it is the province of a court of equity to see to it that a party invoking its relief shall have dealt fairly before relief is given. 3. Mortgages 401 (1)—Acceleration clause is not in the nature of a penalty or forfeiture.

A stipulation that on a default in installments of principal and interest the whole principal and accrued interest shall become immediately due, on mortgagee's election, is made to secure advance payment of debt and to accelerate the time the principal debt shall become due, if interest is not promptly paid, and refers only to payment of the debt, and is not a penalty or forfeiture.

4. Mortgages 401 (1) -An acceleration clause is not unconscionable.

There is nothing unconscionable in a stipulation that on a default in the payment of installments of principal of a debt and interest thereon the whole debt shall become immediately due at mortgagee's election, and as a rule no relief will be granted from such a default, when nothing is done by mortgagee to make it unconscionable to avail himself of it. 5. Mortgages 401 (3)-Stipulation for payment of principal on default in payment of prior incumbrance is in the nature of a default.

A stipulation in a mortgage that, on default in the payment of taxes and assessments and other incumbrances to third parties, the mortgagee may elect that whole debt shall become immediately due, refers solely to the preservation of the security, and is intended to prevent impairment of the security, as the payment or nonpayment of the taxes, incumbrances, etc., does not pay the debt and is in the nature of a penalty or forfeiture, and upon such a default a court of equity will grant relief, if it is not willful.

6. Mortgages 401 (4) —Commencement of action to foreclose was sufficient notice of default on prior mortgage.

Under a mortgage stipulating that whole mortgage debt might be due on default in interest on a prior mortgage, not assumed either by plaintiff's mortgagor or by its grantee, second mortgagee might claim a forfeiture for failure to maintain its security, and no notice of an election to do so was necessary, but some affirmative act or commencement of an action to foreclose second mortgage would be sufficient notice.

7. Mortgages 401 (4)-Not until service is a foreclosure commenced, so as to exercise option under acceleration of maturity clause; "commencement of action."

As respects exercise of option under acceleration of maturity clause by commencing suit, the filing of a notice of the pendency of a foreclosure action is not the commencement of the action; nor is the filing of the summons and complaint in the office of the clerk a commencement of the action, since not until personal service, or by publication of the summons, or summons and complaint, on one of the defendants, is a foreclosure action commenced.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Commencement of Action.]

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