SETON ET AL.
CITY OF NEW YORK ET AL.
Appeal from Special Term, New York County.
Action by Alfred Seton and others, as trustees under the will of Peter Lorillard, against the City of New York and William R. Willcox and others, constituting the public service commission for the First district of the state of New York, and another. From an order ( 114 N.Y.Supp. 1145), enjoining defendants during the pendency of the action from interfering with plaintiffs' easement, defendants appeal. Reversed.
[114 N.Y.S. 566] George S. Coleman (Henry H. Whitman, on the brief), for appellant Public Service Commission.
Theodore Connoly, Corp. counsel, for appellant City of New York.
Philbin, Beckman & Menken (S. Stanwood Menken and Richard Steele, on the brief), for respondents.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
The complaint alleges that the plaintiffs are the owners in fee of a lot of land situated on the northerly side of Canal street, known as 243 Canal street, upon which lot there is now erected a six-story building; that upon the premises to the east of said lot, and known as 239 and 241 Canal street, there was erected a six-story building, now in course of demolition, the westerly wall thereof adjoins said premises and part of said wall stands on the premises known as 243 Canal street; that since on or about the 8th day of August, 1898, until on or about the 22d day of July, 1908, the plaintiffs, or their predecessors in trust, have been the owners in fee of the right or easement to insert in said westerly wall of the building 239 and 241 Canal street, the beams of the six-story building now standing on said premises 243 Canal street, and to maintain such beams in said wall as long as the same shall stand; that the beams of the building 243 Canal street are so inserted in and rest upon the said westerly walls of said building 239 and 241 Canal street; that the building 243 Canal street, and the floors thereof, are supported on the easterly side chiefly by the said westerly wall, and, if the said westerly wall is removed, the said building 243 Canal street will be without support on the easterly side thereof; that on or about the 6th day of July, 1908, the defendants Willcox and others, constituting the public service commission, by the corporation counsel, for and on behalf of the city of New York, applied for the appointment of commissioners of appraisal for the purpose, among other things, of acquiring title to said premises known as 239 and 241 Canal street, including all rights and easements therein, which proceeding is now pending, and on or about the 22d day of July, 1908, title to said premises known as 239 and 241 Canal street vested in the city of New York. And alleges upon information and belief that in said proceeding application is not made to acquire title to any part of said premises known as 243 Canal street, except to acquire such part of the easement described in paragraph 3 hereof as may be imposed upon said property sought to be acquired by this defendant, the city of New York, and in said proceeding application is made to acquire only so much of said westerly wall as stands upon said premises Nos. 239 and 241 Canal street. And [114 N.Y.S. 567] alleges upon information and belief that the defendants herein threaten to and intend to take down and remove the said westerly wall, including the part thereof standing upon the premises of the plaintiffs herein, without providing any adequate support for said building upon said premises known as 243 Canal street in the place and stead of the said westerly wall. And alleges upon information and belief that, if this said westerly wall is taken down and removed, the plaintiffs herein will suffer great and irreparable damage. Wherefore they demand judgment that the defendants be enjoined from tearing down, destroying, or otherwise removing the said westerly wall, unless and until in said proceeding described, or some other appropriate proceeding hereafter instituted, application shall be made by the proper authority to acquire the fee to so much of the premises known as 243 Canal street, as said westerly wall now stands upon, so long as the wall shall stand.
It appears from the record on appeal that the board of rapid transit railroad commissioners on behalf of the city entered into certain contracts for the construction of a subway known as the Brooklyn Subway Loop Lines, extending from the Brooklyn Bridge under Center street, and intended to connect the Brooklyn Bridge with the new Manhattan Bridge and the Williamsburg Bridge. The public service commission having succeeded under the public service commissions law (chapter 429, p. 889, Laws 1907) to the powers of the board of rapid transit railroad commissioners, it became its duty to carry on the work of building this subway. For that purpose the commission, under the provisions of the rapid transit act (Laws 1891, p. 3, c. 4), requested the corporation counsel to institute proper proceedings to condemn the necessary real property, including a parcel situated at the northwest corner of Canal and Center streets, known as 239 and 241 Canal street, which was required for a station and station entrance. This property was owned by certain trustees of the estate of Peter Lorillard for the benefit of Louis Lorillard. Other trustees of that estate, for the benefit of Jacob Lorillard, owned the adjoining property on the west, known as 243 Canal street.
The petition for the appointment of commissioners of appraisal was verified on the 6th day of July, 1908. It alleged the preliminary proceedings by the board of rapid transit railroad commissioners establishing the route of the proposed subway, and that on the 13th of March, 1908, the petitioner, the public service commission, adopted a resolution approving and adopting three similar maps or plans of certain parcels of property required for the construction, maintenance, and operation of this loop. Upon each of said maps or plans there was placed a memorandum as part thereof, clearly indicating the particular estate or estates, rights, terms, privileges, franchises, or easements to be acquired or extinguished for the purpose of such construction, maintenance, and operation of a rapid transit railway in relation to each and every parcel of property shown upon said maps or plans; that the copies were duly filed and transmitted, as required by law. It further set forth:
" The following is a general description of all the real estate to, or in, or over, or appurtenant to, which any title, interest, right, franchise, easement, [114 N.Y.S. 568] term or privilege is sought to be acquired or extinguished, and of every right, franchise, easement or privilege sought to be acquired by such city for public purposes. The premises in which an estate in fee simple is to be acquired in this proceeding are three parcels of land briefly described as follows."
Then follows a description of three parcels of land. The first parcel consists of certain lots designated as Nos. 19, 16, and 14, in block 208, section 1, which taken together form a parcel of land situated on the westerly side of Center street, extending from Canal street to Howard street with a frontage on the northerly side of Canal street extending about 37 feet 9 inches westerly from the westerly side of Center street, and with a frontage on the southerly side of Howard street extending about 36 feet 5 inches westerly from the westerly side of Center street. Included in said first parcel is the property in question, designated as lot No. 19.
The petition further sets forth as follows:
" Each lot or parcel of property to or in or appurtenant to which any title, interest, right, franchise, easement, term, or privilege is sought to be acquired or extinguished is more particularly described upon the above-mentioned maps or plans adopted by your petitioner, the said public service commission of the First district of the state of New York, on the 13th day of March, 1908, by the following numbers and descriptions, to wit: ‘ An estate in fee simple absolute, free from all liens or incumbrances, in and to each and every piece or parcel of property shown upon these maps or plans, which said parcels are described as follows, to wit: *** Lot No. 19. All that certain lot, piece or parcel of land, with the building and improvements thereon erected, situate, lying and being in the borough of Manhattan, of the city of New York, in the county and state of New York, bounded and described as follows: Beginning at the corner formed by the intersection of the northerly side of Canal street with the westerly side of Center street, running thence westerly along the northerly side of Canal street thirty-seven feet, nine inches; thence northerly in a direct line one hundred and fifteen feet, ten inches; thence easterly at right angles to Center street thirty-one feet to the westerly side of Center street; and thence southerly along the same one hundred and twenty-one feet, nine and one-half inches to the point or place of beginning, be said several dimensions more or less.*** Said estates in fee simple in said parcels of property hereinabove described are required for the construction, maintenance and operation in perpetuity of a rapid transit railroad, including said stations and station approaches or entrances." '
The prayer of the petition was duly granted, and an order appointing commissioners of appraisal was duly made, and the oaths of the commissioners were duly filed on the 22d of July, 1908. By section 47 of the rapid transit act (chapter 4, p. 3, Laws 1891, as added by chapter 752, p. 1889, Laws 1894, and amended by section 20, c. 519, p. 912, Laws ...