Opinion
November 28, 1913.
Philip M. Bromberg [ Hugo Hirsh with him on the brief], for the appellants.
Edward Riegelmann [ Howard L. Campion and Archibald R. Watson with him on the brief], for the respondent.
Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice KAPPER at Special Term.
JENKS, P.J., BURR, THOMAS, STAPLETON and PUTNAM, JJ., concurred.
The following is the opinion of Mr. Justice KAPPER:
Granting that the city in street opening proceedings may discontinue as to a portion of the property within the lines of the contemplated improvement ( Matter of Mayor, etc., 52 Misc Rep. 319; affd., 127 App. Div. 650; affd. without opinion, 193 N.Y. 658), I am of the opinion that the change of plans in the case at bar does not come within section 1000 of the charter, which provides for the taxation of the reasonable actual cash disbursements necessarily incurred by a party upon the "discontinuance" of the proceedings. Prior to the revision of the Greater New York charter in 1901 (Chap. 466; amd. by Laws of 1906, chap. 658, § 24) there was no authority for such taxation. ( Matter of Mayor, 34 App. Div. 468.) No reported case since the one last cited appears to have passed upon the question. The change of the street lines in the proceedings at bar did not wholly exclude the properties of the applicants, but retained a substantial part thereof within the proposed street. The same attorney appeared as to all of the property of each of the present claimants, as well that which was included before as after the change, and there was never any segregation of the interest. My view is that the enabling act (§ 1000, supra) did not contemplate such a state of facts as is here presented; that there was no discontinuance within the meaning of the section, but that there was simply an amendment of the proceeding. The section finds ample scope when applied to a discontinuance, either as to a whole piece of property or to the entire proceeding, and it is not necessary to justice in this case that it should be made to apply to an amended proceeding, which by a change of lines simply leaves out a part of the owner's property and retains a substantial portion thereof as a part of the new street.
Motions denied.