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In re Third Ave. in City of New York

Supreme Court of New York, Appellate Division

June 16, 1911

In the Matter of the Application of the CITY OF NEW YORK, Respondent, Relative to Acquiring Title, etc., for the Widening of Third Avenue Opposite East One Hundred and Fifty-ninth Street, in the Twenty-third Ward, Borough of the Bronx, City of New York. ANNIE FUCHS and Others, Appellants.

APPEAL by Annie Fuchs and others, owners, from an order of the Supreme Court, made at the New York Special Term

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and entered in the office of the clerk of the county of New York on the 3d day of February, 1910, overruling objections to the supplemental and amended report of commissioners of estimate and assessment, with notice of an intention to bring up for review an intermediate order entered on the 12th day of October, 1908, denying the appellants' motion to confirm a report of commissioners of estimate and assessment acting at the time the motion was made.

COUNSEL

William F. Burrough, for the appellants.

John J. Kearney of counsel [Joel J. Squier with him on the brief], Archibald R. Watson, Corporation Counsel, for the respondent.

OPINION

CLARKE, J.:

February 9, 1906, pursuant to the provisions of section 970 of the charter (Laws of 1901, chap. 466), the board of estimate and apportionment adopted a resolution for the acquirement of title to the lands and premises required for the widening of Third avenue opposite East One Hundred and Fifty-ninth street in the borough of the Bronx, described as follows: 'Beginning at a point in the eastern line of Third Avenue distant 124.49 feet northerly from the intersection of said line with the north line of East 158th street: 1. Thence northerly along the eastern line of Third Avenue for 74.92 feet; 2. Thence easterly along last-mentioned line for 74.92 feet; 3. Thence southwesterly to 136.85 feet to the point of beginning.'

The widening of Third avenue is shown on section 6 of the final maps and profiles of the twenty-third and twenty-fourth wards filed in the office of the commissioner of street improvements on August 6, 1895. On April 13, 1906, commissioners of estimate and assessment were appointed. Their final report was presented for confirmation on July 31, 1908.

The land is in the form of a triangle, having for its base the proposed new easterly line of Third avenue with its two equilateral sides fronting on the old line of Third avenue, each 74.92 feet in length. The entire parcel contains 2,087.55 square feet or about four-fifths of a city lot. This is subdivided into

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four damage parcels, separately owned, containing respectively: No. 1, 150.69 square feet or about one-sixteenth of a city lot, for which the commissioners allowed $2,834; No. 2, 1,769.77 square feet, or about three-fifths of a city lot, for which they allowed $32,000; No. 3, 167.09 square feet, or about one-fifteenth of a city lot, for which they allowed $3,940; and No. 4, which contains merely .0003 square feet, for which they allowed $1, making a total of $38,775. This report was refused confirmation, the court saying: 'The awards seem to me to be so grossly excessive that I cannot confirm the report. It must, therefore, be returned to the commissioners for reconsideration; ' and an order was entered thereon October 12, 1908.

Thereafter a new commissioner was appointed in the place of one commissioner who resigned, and subsequently another was appointed in the place of a commissioner who died. This commission made a final report in which it allowed for damage parcel No. 1, $75.35; damage parcel No. 2, $884.89; damage parcel No. 3, $83.55; damage parcel No. 4, $.50, making a total of $1,044.29. This report was confirmed, the court saying: 'In view of the restrictions upon the actual improvement of the property by virtue of the easement existing in favor of the Suburban Rapid Transit Co. * * * the awards are certainly not so low as to suggest an error of principle or a disregard of the evidence as to values.' From the order entered thereon the property owners take this appeal and attempt to review as well the prior order of the court refusing to confirm the award of the original commissioners.

The enormous discrepancy in the awards made by the two commissions suggests at once the abnormal character of the lands taken in this proceeding. On December 6, 1886, Anna M. Pender and others, the then owners of the property, executed an instrument to the Suburban Rapid Transit Company which recites as follows: 'Whereas, the said party of the second part desires to construct, maintain and operate its proposed railroad across the premises of the parties of the first part, Now this indenture witnesseth that the said ...


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