Opinion
March 17, 1958
Present — Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Hallinan, JJ. [ 7 Misc.2d 671.]
In an action for an injunction the appeal is from a judgment entered after trial dismissing the complaint. Appellant corporation owns a parcel of land abutting on the southerly side of Wells Avenue in the city of Yonkers. The individual appellants are the lessees of said land. On August 22, 1956 respondent acquired title from the City of Yonkers to that part of Wells Avenue commencing opposite the easterly boundary of appellants' property and extending easterly therefrom beyond Atherton and Bashford Streets to Woodworth Avenue. This portion of Wells Avenue had previously been discontinued as a public street by the City of Yonkers at the request of respondent. The corporate appellant traces its title to an 1855 deed which describes the property as bounded on the north by "the southerly line of Wells Avenue". Said deed refers to a map filed in the County Clerk's office in 1855, on which Wells Avenue is depicted. Appellants introduced in evidence a map made and filed in the County Clerk's office in 1850, on which map Wells Avenue is also depicted. Appellants brought this action to restrain respondent from blocking access easterly along Wells Avenue. Judgment unanimously affirmed, with costs. The proof was insufficient to show the creation of a private easement of access along Wells Avenue. There was no showing that Wells Avenue had been laid out and was a strip then owned by the parties to the 1855 deed. Wells Avenue is delineated on the 1850 map, apparently as a village street intersecting a number of other streets which are also depicted on the 1855 map. Any and all easements, moreover, were extinguished by the discontinuance, closing and sale of the affected portion of the street, as approved and authorized by the Legislature (L. 1956, ch. 615), with provision for determination of damage and compensation for taking of easements, if any, in the resolutions of discontinuance and in accordance with appropriate provisions of the Charter of the City of Yonkers (L. 1908, ch. 452, as amd.).