Opinion
May, 1929.
Present — Lazansky, P.J., Rich, Kapper, Hagarty and Scudder, JJ.
Judgment unanimously affirmed, with costs. The right of defendant to use Pondfield road, the fee of which is in plaintiff, was for highway or street purposes. ( Eels v. American Telephone Telegraph Co., 143 N.Y. 133; Palmer v. Larchmont Electric Co., 158 id. 231; Osborne v. Auburn Telephone Co., 189 id. 393.) This right came to defendant from the State. When the State in the exercise of its police power closed the road for the benefit of the public ( People ex rel. City of Geneva v. G., W., etc., Traction Co., 112 App. Div. 581; affd., 186 N.Y. 516; People ex rel. City of Olean v. W.N.Y. P.T. Co., 214 id. 526; People ex rel. City of New York v. N.Y.R. Co., 217 id. 310; Stern v. International Ry. Co., 220 id. 284), the right of defendant to string its wires where the road had been was brought to an end. A different conclusion might be reached as to the right of defendant to maintain its wires over the two strips adjoining the main portion of plaintiff's right of way, which strips were conveyed to plaintiff by the village of Bronxville in 1916, after the village had given its consent to defendant's predecessor to place its wires over the streets, avenues and places of the village for conducting and distributing electricity. But as defendant could not use these two strips without using the main part of plaintiff's right of way, and no question is raised with reference thereto, it is not necessary to modify the judgment.