In re the City of New York Relative to Acquiring Title , 254 A.D. 878 ( 1938 )

Proceeding in condemnation for the acquisition of title in fee to Tyndall street in the borough of Queens, city of New York. Pinal decree modified by striking out the award for damage parcel No. 1, and by providing that as to that parcel there be a new trial. As so modified, the decree, in so far as it affects appellants, is unanimously affirmed, with costs to appellants. There is no proof of an offer by the owners to dedicate the two-foot strip. The proof invoked to establish an acceptance of an assumed offer to dedicate and the proof of user and maintenance by the city respecting Tyndall street did not establish user or maintenance of the two-foot strip; it merely established user and maintenance of the forty-eight-foot strip, or damage parcel No. 2. The conduct of the claimants respecting this property differed as between damage parcel No. 1 and damage parcel No. 2. (Strong v. City of Brooklyn, 68 N. Y. 1, 16; City of Cohoes v. D. & H. C. Co., 134 id. 397, 402.) The city, therefore, did not estaolish that the two-foot strip was burdened by a public easement or street use; consequently the claimants were entitled to a substantial award rather than the nominal award given to them. The doctrine of res judicata has no application. (Jarvis v. Lynch, 157 N. Y. 445; City of New York v. Long Island B. B. Co., 246 App. Div. 589.) On this record the claimants are entitled to an award of substantial damages for the taking of damage parcel No. 1. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.