Matter of City of New York (Newton Avenue)

Cardozo, J. In 1895, Augustus Van Cortlandt owned land which fronted on the Albany Post road in the city of New York, and extended from Two Hundred and Fifty-third street on the south to Two Hundred and Fifty-sixth street on the north. On the official map filed by the commissioner of street improvements in November, 1895, the Albany Post road was discontinued as a highway. The Van Cortlandt lots, as shown on the map, were bounded by Broadway on the east and Newton avenue on the west. Broadway, at that time, had been opened, and was already an existing street. Its grade was changed, however, in November, 1910. The Albany Post road, though discontinued on the map, remained in use' as a highway, to the same extent as before, until August, 1914. At that time Two Hundred and Fifty-fourth street was opened so as to cross the Albany Post road five feet above its grade, and thereby bar its further use. Augustus Van Cortland who owned the lots in 1895, died in 1912, and title is now held by the trustee under *406 his will. There has been no other change of ownership. In April, 1915, the petitioner, individually and as trustee, moved that commissioners of estimate report the compensation due to him because of the discontinuance of the Albany Post road, and the extinguishment of his easements therein. The application was made under chapter 1006 of the Laws of 1895. The validity and effect of that statute are no longer open questions in this court. We have held that when a map is filed under section 2, discontinuing an existing highway, all easements, public and private alike, are thereby extinguished (Barber v. Woolf, 216 N. Y. 7, reviewing all the cases). The statute says (§ 2) that this result shall follow as soon as any one of the streets that bound the block is opened. We have held that this means as soon as any of such streets are physically opened (Matter of City of New York, 192 N. Y. 459; Matter of Mayor, etc., of N. Y. (Walton Avenue), 131 App. Div. 696, 721; affd., 197 N. Y. 518; Matter of City of New York (Dimelow), 145 App. Div. 855; 204 N. Y. 670). One of the streets bounding the petitioner’s land is Broadway, and Broadway was physically open when the map was filed. The result is that upon the filing of the map in November, 1895, the easements were appropriated. The next question is whether, there is any statute of limitation which has barred the right to compensation. The owner of this land had no notice, actual or constructive, of the filing of the map. Until the physical invasion of his easements in 1914, he had no notice of an intent to close the existing highway. In such circumstances, the period of limitation prescribed by section 5 of the statute is inapplicable. This was held in Matter of City of New York (Grand Boulevard and Concourse) (212 N. Y. 538). Our ruling there was limited to claims where highways are discontinued under section 2. It has no application to a closing under section 3, where action proceeds upon notice to the owners. There was a *407 query in that case “whether the failure of the limitation carries with it as an additional consequence a failure of the appropriation. ” But while asking the question, we expressly declined to answer it. “We are not required,” we said, “ to resolve these doubts in order to decide the case at hand.” Barber v. Woolf, which was decided the following year, took up the subject anew, and held in an opinion by the chief judge, which was intended to settle the law (216 N.Y. at p. 16), that section 2 of the act was operative and valid. Any doubts suggested by earlier decisions were thereby dispelled. But aside from the authority of Barber v. Woolf, we are satisfied that the invalidity of the limitation prescribed by section 5 has no effect upon the validity of other sections of the law. The scheme of the statute has not been mutilated in essentials. The city is not expected to wait till property owners have complained. Section 4 makes it the duty of the corporation counsel, as soon as he receives a copy of the map, to apply to the court for the appointment of commissioners to ascertain and determine the compensation of owners whose rights have been extinguished. If, therefore, there has been undue delay, the officers of the city are themselves to blame for it (Drury v. Midland R. R. Co., 127 Mass. 571, 585, 586). It was their right at any time, and indeed it was their duty, to set the proper proceedings in motion and limit the damages accordingly. We are told that great hardship will result to the city if it is charged with interest since the appropriation in 1895. But we do not now decide that it is chargeable with interest. That question has not been certified to us. The Albany Post road, though nominally closed in 1895, was not physically closed until 1914. Up to that time the adjoining owners had the same use of it that they had in former years. It will be for the courts below to determine, when the commissioners make their report, whether the value of the beneficial use may be set off against interest on the award (Matter of Dept. of Public *408 Parks, 53 Hun, 280; Matter of Mayor, etc., of N. Y., 40 App. Div. 281, 286, 287; Matter of Mayor, etc., of N. Y. [Grote Street], 150 App. Div. 215, 218, 219; Matter of Mayor, etc., of N. Y. [Riverside Park], 59 App. Div. 603, 605; 167 N. Y. 627; Fink v. Newark, 40 N. J. L. 11). The question is one which is at least debatable. We cannot- assume, therefore, at this time that an award of interest will follow. But the gravity of the hardship, in any event, may be doubted. The property owners insist that the taking became complete in 1914, and .the city insists that we must date it back to 1895. Evidently the interest, however high, does not equal the intermediate appreciation in the value of the land. The city is in a position, moreover, to recoup the loss which it may suffer. By section 6 of the act the cost of extinguished easements must, to' the extent of the resulting benefits, be assessed upon the land within the boundaries of the streets. The ultimate burden will rest, not upon the city, but upon the owners whose land is restored to them freed from the easements which once restricted their enjoyment. Our conclusion is that the act of 1895 is constitutional in its extinguishment of private easements; that the easements were appropriated in 1895; and that the claimant’s right to compensation has not been barred by limitation. The order should be affirmed, with costs; the first question should be answered in the affirmative; the seventh and eighth should be answered in the negative; and it is unnecessary to answer the other questions. Willard Bartlett, Oh. J., Hiscock, Chase, Collin, and Hogan, JJ.-, concur with Cardozo, J.; Cuddeback, J., dissents. Order affirmed.