Opinion
October 4, 1918.
Isaac R. Oeland [ George E. Blackwell with him on the brief], for the appellant Woodward-Brown Realty Company.
Harold Swain [ Archer P. Cram with him on the brief], for the appellant Augustus D. Juilliard.
Joel J. Squier [ William P. Burr, Corporation Counsel, with him on the brief], for the City of New York.
We see no reason for disturbing the award on the question of values, and, except for the well-founded claim of appellant Juilliard that he is entitled to an award for his interest in the land running directly to him, the order might have been affirmed without modification.
The commissioners were right in deciding that the evidence did not disclose an intent on the part of the owner to dedicate the land for park purposes, nor to subject it to a servitude for that purpose in favor of purchasers by deeds describing the land conveyed to them by reference to a map showing the property as a public park. Matter of City of New York ( Johnson Avenue) ( 135 App. Div. 630; affd., 198 N.Y. 505) is not in point, for the implication of an easement of access over a street, as located on a map on which the property conveyed is founded, is much aided by the element of necessity which is not present in the case of a public park. The fact that the park had been laid out by the board of estimate and apportionment and proceedings in condemnation were pending when the map was filed, prevents the application of the doctrine upon which the city relies.
Whether the water front was so adapted to the uses of commerce as to give a value to the whole plot owned by the appellant the Woodward-Brown Realty Company, for manufacturing and commercial purposes greater than its value for residential uses, was a question of fact. The claim of the appellant is not that the water front had some value for limited commercial use, but that it gave to the whole fifty-six acres a present special market value as the site for the location of extensive manufacturing establishments. Although the existence and use of the dock of the New York Connecting Railroad Company demonstrated that docks may be built and used, yet it is by no means conclusive in establishing the claim of appellant that such a development as it proposes is possible. The question was exhaustively litigated, many competent and experienced witnesses were called, the solution of the question involved the consideration of physical facts which were open to the view of the commission, and its decision should not be lightly disturbed.
But the appellant Juilliard had a direct interest in the land taken, for which he is entitled to an award. He owned a mortgage for $141,000, which, although it was a lien not only on a portion of the land taken but also on other property, yet for its full amount it was a lien on every portion of the land covered by it and, therefore, a lien for its full amount on the land taken. The award in the form in which it is made leaves the appellant's interest confused with that of other mortgagees who held mortgages on other portions of the property. If the portion of the land taken which is subject to the Juilliard mortgage has a value in excess of the amount of the mortgage, then his interest is measured by the face of his mortgage and interest. If the value of the land is less than the face of the mortgage, then his interest is the value of the land, less, of course, a proper apportionment of taxes and assessments.
The order should be modified by directing that the report be referred back to the same commissioners to ascertain the value of the appellant Juilliard's interest in the land, in the manner indicated in this opinion, and to award the amount directly to him, deducting it from the amount of the award to the Woodward-Brown Realty Company, and as so modified affirmed, with ten dollars costs and disbursements to appellant Juilliard against the city of New York.
JENKS, P.J., MILLS, BLACKMAR, KELLY and JAYCOX, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed, with ten dollars costs and disbursements to appellant Juilliard against the city of New York.