Morse v. City of Troy , 45 N.Y. Sup. Ct. 301 ( 1885 )

Learned, P. J.:

This is an action to recover for injuries suffered by plaintiff by falling into a hole. The principal question is whether the place where the hole was, at the time of the accident, was a public street. The plaintiff was nonsuited on the ground that it was not.

The accident happened May 7, 1877. The plaintiff relies principally on a provision of the charter (Laws 1872, chap. 129, tit. 4, § 3, and Laws of 1870, chap. 598, tit. 6, § 4): “ All streets and avenues in said city which are now opened or shall hereafter be opened to public use, and shall be used as such for five years continuously, shall be deemed and taken to be public streets and avenues,” etc.

Albertson, the owner of certain premises, on the 12th day of September, 1871, conveyed to Collins a strip of land, twenty-five feet in width and 265 feet in depth, bounded on a public street. The street is said to run from Maple avenue to Pawling avenue, describing two certain courses, and the conveyance adds: “ The lands for said street shall be opened on the southerly side of and adjoining said two lines on or before the first day of June, 1872, forty-seven feet six inches in width for the use of the public.” The lands on each side were used for agricultural purposes. Thus it will be seen that the time when this street was to be opened was not five years prior to the accident. If the conveyance then is to be con strued as an opening, the statute had not established an acceptance at the time of the accident.

Rut plaintiff insists that the acts done in respect to this land in April or May, 1872, constituted an opening. And indeed it is on such acts that the plaintiff must rely; because the deed of conveyance was only a contract with Collins and not itself a dedication to the public. There were, as Collins testifies, no houses on the street, so that it does not appear that any persons along the alleged street, except Collins, acquired rights therein; Albertson, the grantor, being the owner of the adjacent land. It appears that the land, thus called a street, was in a rough condition, and that it is not graded even yet; that Albertson the owner worked on it year after year; first cut it down a foot and lowered the trees; then another foot and lowered them again; that when working Albertson closed up this street with barricades at each end. The city has never done anything on this street; has not worked it or graded it or set up lampposts on it. In construing the provision of the charter above cited we refer to Strong v. Brooklyn (68 N. Y., 1), and Petition of Rhinelander (68 id., 105). In the former it is remarked that “ at the time when thrown out and for the term of five years continuous use the premises must be in the shape and for the purpose of streets.” "Without repeating in detail the testimony, we may say that we think it fails to show this condition of things in respect to this piece of land for five years prior to the accident. The general rule is that there must be an acceptance of a proposed street, as well as a dedication in order to impose on the city a duty to take care of the street. The statute comes in the place of an acceptance, as the courts say. If this be so, then it must follow that the person who dedicates the street must have done such acts that the city might have accepted the dedication at the beginning of the five years; that is, there must be five years of such dedication, that an acceptance by the city at any time within that peoiod would be binding on the person who dedicated the land. Now we think it is not shown here that the city, on the 15th of May, 1872, and on every day thereafter, could have taken this strip of land as being actually a dedicated street. If this be so, the learned justice was right in his nonsuit. In this view the question of the admission of Albertson’s statement is immaterial. A question was raised as to the plaintiff’s right to appeal under section 466 of the Code, she having commenced this action as a poor person. We are of the opinion that that section does not prevent her from appealing, but that the privilege of litigating as a poor person does not apply to the appeal taken by her.

The judgment is affirmed, with costs of the appeal against plaintiff.

Landon, J., concurred. Present — Learned, P. J., and Landon, J.

Judgment affirmed, with costa.