This action was brought to procure a judgment establishing a private right of way over certain real estate of- the defendant, and *283for an injunction and damages. The complaint was dismissed on the merits and the plaintiff appeals.
There is little or no dispute as to the material facts involved. In 1807 a street called Avenue A, running between One Hundredth and One Hundred and Sixth streets and parallel to and east of First avenue, was laid out on a map of the city'of New York, made by commissioners appointed under an act of the Legislature.* In 1841 a private map known as “ Map of 236 lots lying in the Twelfth Ward of the City of New York ” was made, on which appeared Avenue A as laid out on the city map. Avenue A was never^ opened nor used as a street, and was stricken from the city map by an act of the Legislature in 1875 (Chap. 494), and while it does not, and in fact never did, exist as a street, except upon the maps, it is convenient in considering the question here involved to refer to it in locating the property which is the subject-matter of . this litigation.
Thé plaintiff is the owner of a tract off land situate on the northwesterly corner of Avenue A and One Hundred and Third street, extending 300 feet westerly along One Hundred and Third street, and approximately 100 feet northerly along Avenue A to the center of the block. The defendant owns the westerly half of Avenue A adjoining the plaintiff’s premises. Both parties trace their title to a common grantor, one Cummins, who became the owner in I860.* In 1869 he mortgaged the property now owned by the plaintiff, describing it as .follows: “All those twelve certain lots, pieces or parcels of land situate, lying and being in the Twelfth Ward of the Cify of New York,'bounded and described as follows: Beginning at a point formed by the intersection of the westerly side of Avenue A and the northerly side of One Hundred and Third street; running thence westerly along the northerly side of One Hundred and Third street Three Hundred (300) feet; thence northerly and parallel with Avenue A One Hundred (100) feet Nine (9) inches- to the centre line of the block; thence easterly along the said centre line Three Hundred (300) feet to the westerly side of Avenue A; thence along the westerly side of Avenue A One Hundred (100) feet Nine* (9) inches to the place of beginning.” This was the same description by which the property was conveyed to *284him, and the title to the property now owned by the defendant was conveyed to him. by adding' at the end of the description above quoted the following: “Together with all the right, title and interest of the parties of the first part to the streets in front of the premises hereby granted.” The words “right, title and interest” were sufficient, as will hereafter be seen, to lodge in Cummins the fee of the westerly half of Avenue A adjoining the plaintiff’s premises. The Cummins .mortgage was foreclosed' in 1876, and the plaintiff claims under the purchaser at the foreclosure sale, through mesne conveyances, each of which described the property conveyed precisely in the same way that it had been described in the mortgage. The question presented is,, has the plaintiff an easement or right of - way over the defendant’s land ?■ That he has' no public easement or any rights growing out of ór predicated iipon the map made by the commissioners of the city in 180’7, and .the striking therefrom or the discontinuance of such avenue in 1875, is clear. (Kings County Fire Ins. Co. v. Stevens, 101 N. Y. 411; Holloway v. Southmayd, 139 id. 390.) Indeed, I do not understand that the plaintiff claims any rights other than a private easement. The discontinuance of Avenue A by the city does not, of course, determine the question as' to whether or not the plaintiff has a private easement, because the destruction of a public easement does not destroy a private one. (White's Bank of Buffalo v. Nichols, 64 N. Y. 65; Holloway v. Southmayd, supra; Matter of Adams, 141 N. Y. 297; Reis v. City of New York, 188 id. 58.) But I am of the opinion that the plaintiff has not a private easement in the land owned by the defendant. The fact, that an actual or- proposed street is used as a boundary in describing property does not, in and of itself, create any easement in ■ such street. The determination of that question necessarily depends upon the intent of the parties., to the grant, and in construing the grant for the purpose of ascertaining the- intent, the court will take into consideration the situation of tlie parties, the state of the thing granted at the time made, and in fact all the circumstances attending the transaction. (Matter of One Hundred & Sixteenth Street, 1 App. Div. 436; Matter of Brook Avenue, 40 id. 519 affd. on opinion below, 161 N. Y. 622; Matter of Mayor [Robbins Avenue], 83 App. Div. 513.)
In Underwood v. Stuyvesant (19. Johns. 181) the ..owner ■ of a *285parcel of land subdivided it into lots and made a map thereof on .which were shown certain streets upon which lots abutted, one of them being called Peter street. The owner then leased certain lots bounded on the west by the Bowery, which was an open public street, and on the north by Peter street. Peter street ivas not then open and was subsequently discontinued when a new plan of the city was made. The plaintiff claimed a right of way over Peter street as laid down on the map, but as he had access to his premises by the Bowery, the court held that the lessee had not the right to insist upon the conditional agreement oh the part of the lessor.
In Hopkinson v. McKnight (31 N. J. L. 422) it was held that a conveyance of a lot which was bounded upon an “ alley and street proposed to be laid out,” but which was never opened and used as a street, did not amount to the grant of an easement or right of way.
In Matter of Brook Avenue (supra) a grantor had conveyed property which, as here, fronted on an existing public street. On one side it was boúnded by the line of “ Brook Avenue as laid out by the department of public parks of the city of New York.” Brook avenue, like Avenue A, was never opened or used as a public street and it was held that the grantee acquired no private easement therein.
All of the plaintiff’s property has a frontage on One Hundred and Third street. Avenue A lias never been used, either as a public or private street. There is nothing to indicate that Oummins, in his mortgage, or any of the subsequent grantors of the lots now owned by the plaintiff, intended the grantees should have a right to any present use of the land included within the bed of Avenue A ór any other or further easement, except that which might accrue, to them if such*avenue should be opened as a public street; a contrary -intention, it seems to- me, necessarily must be inferred from the language used by Oummins in the mortgage and in the respective deeds of conveyance which thereafter followed. Iii considering the intention of the parties and the inferences to be drawn from the mortgage made' by Oummins, the history of the conveyances of the tract in question is important. All of the deeds of the property, previous to that which put the title in Cummins, conveyed the bed of Avenue A by the following words : “ Together with all *286the right, title and interest of, in and to the one-half part of the streets and avenues in front of and adjoining the premises above described, subject to the use of the land laid down on said map as public streets and.- avenues by all' the owners of lots laid down on said inap and by the public generally as public streets and avenues.” In Wheeler v. Clark (58 N. Y. 267) almost the identical, words ■ were used by a grantor in conveying lots along which ran an existing highway, and it was there held that upon the closing of the highway the grantees had no private easement over the street. That decision, it is true, is not directly in point because there the question arose between the owners of two lots abutting on the highway. It is, however, as it seems to me, important when applied to the language used in all of the grants from 1841 to and including the grant to Cummins as ascertaining his intent in omitting the words which-he did in describing the property mortgaged by him. The mortgage made by Cummins described the tract exactly as it had been described in. the deed to him, except that the rights in Avenue A were omitted. When the property was sold under the foreclosure of that mortgage in 1876 Avenue A had been stricken from the map. and it was then known that it was not to become a. public street-, and yet the referee’s deed and all subsequent deeds continued to use precisely the same description of the. property. The fact that Avenue A was thus used in describing the property, with no méntion of any private easement or right, although it had previously been stricken from the map and had "never in fact been opened or used as a street, indicates, as it seems to me, that Avenue A was used merely as a boundary of the land conveyed rather than tliat any rights in the avenue were intended to be included.
This conclusion is strengthened by the fact that the reservation of the fee in the street, if it were to be burdened with a private easement after the street had been stricken" from the city map, would have amounted to little or nothing so far as preserving property rights is concerned. It is also strengthened by the fact that the alleged right had never been asserted nor sought to be used, and that no claim was made by reason of it until nearly thirty years after the foreclosure of the Cummins mortgage, and a portion óf that time at .least the same had been occupied in open and notorious hostility to such claim.
*287The case is plainly distinguishable from those where a grantor has laid out his property into lots and streets and conveyed with reference to such streets, and for that reason the case of Lord v. Atkins (138 N. Y. 184) and other similar cases cited by the appellant do not apply. The deed which conveyed the property to Cummins described the property in the same way as the mortgage given by him, except it did not include the bed of the street. It is true the property was described as “ twelve certain lots,” and on referring to the map it appears that four of them fronted on Avenue A, but it is very significant that no reference was made in the conveyance to any map. The property was described by metes and bounds as a whole, and was and has always been treated as a single parcel. The word “ lots ” as thus used, under the facts here presented, is entitled to no more weight than the word “ acres ” would be. The plaintiff now owns this tract, extending, as we have already seen, 300 feet along One Hundred and Third street, an open and public street. Under all the circumstances I do not see how, if we are to follow Matter of Brook Avenue (supra), it can be maintained that the Cummins mortgage created any easement in favor of these lots in Avenne A, or that the plaintiff has any interest in the land owned by the defendant.
I am of the opinion that the judgment appealed from should be affirmed, with costs.
Houghton, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.
See Laws of 1807, chap. 115.— [Rep.