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People ex rel. Topping v. Purdy

Supreme Court of New York, Appellate Division

March 24, 1911

THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES H. TOPPING, Respondent,
v.
LAWSON PURDY and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Taxes of 1910.)

APPEAL by the defendants, Lawson Purdy and others, as commissioners, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of January, 1911, sustaining

Page 390

a writ of certiorari and reducing an assessment for the purposes of taxation against certain real property of the relator.

COUNSEL

Curtis A. Peters of counsel [Archibald R. Watson, Corporation Counsel], for the appellants.

Merle I. St. John of counsel [A. Wheeler Palmer with him on the brief], for the respondent.

CLARKE, J.:

Relator is the owner of a parcel of real estate situated in the block between Marcy place, Elliott place, Grand boulevard and Walton avenue in the borough of the Bronx, lying on the north side of Marcy place 207.13 feet east of Walton avenue and designated on the tax map of said city in section 11 as lot No. 85 in block 2841. This parcel is 60 feet in width and 100 feet in length and was assessed for taxation for the year 1910 at $2,500. Prior to May 22, 1872, Andrew J. Dam was the owner of a certain tract of land within the territory bounded by Marcy place on the south, Jerome avenue on the west, Grand boulevard and concourse on the east and Elliott place on the north, including the aforesaid premises owned by petitioner. By chapter 841 of the Laws of 1868, amended by an act passed April 14, 1869 (Chap. 183), the commissioners of highways of the town of Morrisania were authorized to lay out the streets in certain sections of the then town of Morrisania. On February 23, 1871, there was filed in the office of the register of Westchester county a map laying out proposed streets in the town of Morrisania. Certain streets designated on the said map as Marcy place, Walton avenue and Mott street ran through the aforesaid premises owned by Andrew J. Dam.

On October 8, 1872, there was filed in the office of the register of Westchester county a map entitled 'Map of property at Inwood, town of Morrisania and West Farms, Westchester county, property of Andrew J. Dam, New York, May 22, 1872; R. Rosa, surveyor.' Upon said maps were shown the premises of Andrew J. Dam cut up into lots fronting upon certain streets laid out thereon. On the said map Marcy place, Walton avenue and Mott street were shown laid out with the same dimensions and at the same places as shown on the said map of the commissioners of the town of Morrisania.

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Mott street, as thereon laid out, was coincident with the aforesaid premises owned by petitioner.

Thereafter, by deed recorded on or about October 1, 1872, Andrew J. Dam conveyed to Eliza Goodman lots 21-25 on the aforesaid map of Inwood by description substantially as follows: 'Beginning on the northeast corner of Marcy Place and Mott Street, as laid out on the said map of Inwood, running thence easterly along the east side of Marcy Place, 164 feet; thence northerly parallel with Mott Street 102 feet 9 inches; thence westerly parallel with Marcy Place 158 feet 71/2 inches to the easterly side of Mott Street; thence southerly along the easterly side of Mott Street 103 feet 3 inches to the point or place of beginning.' At about the same time Dam conveyed lots 16, 17, 18 and 19 on the said map, being immediately to the west of Mott street, to one Hamburger by deed recorded in the office of the register of Westchester county, liber 812 of Conveyances, page 283, containing the same form of description as Dam to Goodman.

Thereafter by chapter 613 of the Laws of 1873 the aforesaid section of Westchester county was annexed to the city and county of New York. Said act of annexation provided (ยง 14) that all the streets laid out by the local authorities should be the official lay out of that portion of the city of New York. Thereafter the local authorities of the city of New York changed the map of the city so as to remove Mott street or Mott avenue therefrom. The relator alleges that by reason of the aforesaid conveyances to Goodman and Hamburger, the said land within Mott street is still subject to rights of air and access over the same in favor of the said Goodman and Hamburger and their successors, and that the ownership of the naked fee of the land in Mott street or Mott avenue is for all practical purposes valueless inasmuch as the owner of said premises can do nothing with the same and it has to be kept open for the benefit of the said abutting owners.

He further alleges that he has duly acquired the interests of the said Dam and owns and holds the said property under and subject to all the terms, conditions and covenants and restrictions contained in said deeds to Goodman and Hamburger; that the owners of said lots and lands so conveyed to Goodman and ...


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