Matter of City of New York (Exterior St.)

*4 Lewis, J. The appellant, The Bowery Savings Bank, a mortgagee of premises presently to be described, challenges procedure by which the City of New York acquired certain real property for the widening of East 135th Street in connection with the construction of the westerly approach to the Triborough Bridge. The condemnation involved easements possessed by the owners of lands, outside the lines of taking, which abut upon the Mott Haven Canal. (See Matter of City of New York [Exterior St.] 285 N. Y. 455, 457.) An award for consequential damages was paid to Stephens Fuel Company, Inc., the owner in fee of damage parcel No. 381, upon its representation that the property was free of all encumbrances. It now appears, however, that the appellant held several mortgages on that parcel but filed no notice of claim in the condemnation proceeding captioned above. More than two years after payment of the awards the appellant, appearing “ specially ” in this proceeding, moved at Special Term to set aside the final decree in condemnation upon the ground that the court had acquired no jurisdiction in this proceeding over damage parcel No. 381 or over the appellant as mortgagee. Special Term denied the motion upon the ground that there was no fraud or mistake in making the award which would justify vacating the decree. The Appellate Division affirmed the order, one Justice dissenting, and granted leave to appeal to this court upon the following certified questions: “ 1. Did the Court at Special Term have jurisdiction to amend the damage maps in this proceeding so as to include Damage Parcel No. 381 without giving the notice provided for in Section 994 of the Greater New York Charter? 2. Were the proceedings taken herein sufficient to apprise appellant that its property was to be taken? 3. Did the Court at Special Term have jurisdiction over appellant? ” Additional facts are as follows: On October 20, 1936, the Board of Estimate and Apportionment' adopted a resolution which authorized the taking in fee of property required for an extension and widening of East 135th Street. The rule map approved by the Board included premises designated as “ Parcel F ”,— a strip of land on the northerly side of East 135th Street through which passed Mott Haven Canal. The proceeding was instituted on notice published in the City Record as pro *5 vided by sections 999 and 1000 of the Greater New York Charter, which notice described by metes and bounds the property to be taken, including “ Parcel F.” The published notice also directed every person interested in the property to be taken to file a claim therefor and proof of title. Thereafter in due course and upon authority of a resolution of the Board of Estimate, the Corporation Counsel applied for an order of condemnation which was granted on November 4,1936, on which date title to the property described in the condemnation notice vested in the City. A draft damage map was then prepared by the president of the Borough of Bronx and thereafter the appellant filed a notice of appearance as owner of damage parcel No. 147 — a parcel separate and unrelated to parcel No. 381 upon which it held mortgages. Thereafter it partiel-' pated actively in the proceeding and received an award for parcel No. 147. During the course of the condemnation trial several owners of parcels of real property along Mott Haven Canal and not within the lines of taking — including the owner of Parcel No. 381 — applied for leave to file claims in the proceeding. Such applications were based on the alleged fact that the acquisition of title in fee of damage parcel F, which included a segment of the Mott Haven Canal, and the filling in of the canal prism at that location would extinguish their easements in the Canal. The application was granted and the court directed that damage numbers be assigned to such owners along the Mott Haven Canal whose easements would be cut off by the taking. The damage numbers thus assigned included the Parcel No. 381 owned by Stephens Fuel Company, Inc., as to which property the appellant was a mortgagee. A tentative decree included awards to Stephens Fuel Company, Inc., as owner of damage Parcel No. 381 and to the appellant as owner of the separate damage Parcel No. 147. Notice to file objections to the tentative awards was published in the City Record as provided by the Greater New York Charter and thereafter a final decree in condemnation was entered. Upon the appellant’s present motion to vacate the final decree in condemnation it appears that Stephens Fuel Company, Inc., filed with the Corporation Counsel proof of title of its premises *6 in connection with its claim for consequential damages; that such claim included a verified statement by one of its executive officers —“ That said lands [Parcel No. 381] are free and clear of all mortgages * * * that upon receiving payment of the award an executive officer of Stephens Fuel Company, Inc., signed a verified receipt therefor and a release, which instrument contained the statement “ There are no mortgages or liens of any description against the said premises ”; that in truth the appellant was then the owner of several mortgages which were liens upon land comprised within Parcel No. 381. It also appears by an affidavit of the executive officers who filed the verified proof of title for the corporate owner of Parcel No. 381 and the verified receipt and release at the time the award was paid, that at the times of filing such instruments they knew there were mortgages upon the lands described in the instruments but were informed by counsel and believed that no land subject to the mortgage liens was being acquired by the City of New York in the condemnation proceeding. The question for our decision is whether the notice of condemnation, which failed specifically to describe damage Parcel No. 381 as included in the taking, was adequate. The appellant argues that the condemnation proceeding as originally instituted gave inadequate notice that easements appurtenant to property abutting upon Mott Haven Canal outside the line of taking would be affected. It asserts that a description showing a taking in fee of Parcel F, which included a strip of land through which Mott Haven Canal passes, would give no indication that a bridge at that location and within the line of taking was to be discontinued and that the canal prism was to be filled at that point. A statute is cited (L. 1896, ch. 623) pursuant to which a bridge had been erected over the Mott Haven Canal at East 135th Street as a means to maintain the width and the depth of the canal at that location, We may not disregard the fact that Mott Haven Canal is a private waterway and was properly the subject of condemnation. (Matter of Canal Place, 64 App. Div. 604, 606-608. Cf. Matter of City of New York [Canal Place] 115 App. Div. 458, 464, 465, affd. 191 N. Y. 525.) There was no requirement that the City retain permanently a bridge across the canal at East *7 135th Street if, for the purposes of widening that street, it acquired the fee of the segment of canal lands there involved and filled in the canal prism within the line of taking. The only notice to which the appellant was entitled was that prescribed by statute. (Matter of Appl’n Mayor, etc., of City of N. Y., 99 N. Y. 569, 580.) The Greater New York Charter, section 999, requires of the City that its notice of application shall indicate “ * * * the real property to be taken by a general description by metes and bounds * * * ”, Section 1000 of the Charter provides for a notice which shall contain “ a general description of the real property to be acquired.” The City complied with the requirements prescribed in both sections. The City could not include damage Parcel 381 within the line of taking because it was not proposed to acquire that property. The damage to Parcel No. 381 was the consequential loss of easements which occurred by reason of the taking of the property described in the notice. An indication as to the sufficiency of the notice given may be gathered from the fact that several abutting owners on Mott Haven Canal outside the line of taking — including Stephens Fuel Company, Inc. — appeared in the proceeding and claimed consequential damages. " We believe that the notice was adequate and that the inclusion of damage Parcel No. 381 within the damage maps did not constitute an amendment of a defect in the notice of application or other proceeding in the condemnation as contemplated by section 994 of the Greater New York Charter. That statute provides: “ § 994. The court may at any time amend any defect or informality in any notice, petition, pleading, order, report or decree in a proceeding authorized by this title, or cause real property affected by such defect, informality or lack of jurisdiction to be excluded therefrom, or other real property affected by such defect, informality or lack of jurisdiction to be included therein by amendment, upon ten days’ notice, published and posted as provided by this title for the institution of a proceeding, and may direct such further notices to be given to any party in interest as it shall deem proper.” There was no defect or informality in any notice which required an amendment in the description of the property within the line of taking. The filing of claims for consequential dam *8 ages by abutting owners outside the line of taking, and the assignment by Special Term of additional damage parcel numbers neither enlarged nor diminished the area within the line of taking. The published notice disclosed that the City was acquiring a fee for street purposes in land within the widened portions of East 135th Street through which passed the waters of the Mott Haven Canal.1' By that publication owners of lands abutting on the Canal outside the line of taking had notice that the City was to acquire property in fee for a use permanent in character which indicated there would be an impairment or destruction of their easements. Owners and others having interests in property outside the taking were thus apprised that the use to which the street might be put was' actual or threatened and thereby might entitle the owners to consequential damages. (Vanneck Realty Corp. v. City of New York, 284 N. Y. 403. See Matter of City of New York [Rockaway Beach], 288 N. Y. 75, 77.) It follows that the payment made by the City to the claimant, Stephens Fuel Co., Inc., named in the final decree, in the absence of any prior demand by the appellant, was proper and that the notice given as provided by the Charter was sufficient. There was concededly no fraud or bad faith on the part of the Comptroller or the City which may vitiate the payment thus made. (See Merriman v. City of New York, 227 N. Y. 279, 284.) The order should be affirmed, with costs. Each certified question should be answered in the affirmative. ¡