On the 31st day of March, 1905, the proper authorities by resolution approved of a map for the extending and opening of West One Hundred and Seventy-seventh street from Broadway' to Riverside drive, in the borough. of Manhattan, city of New York. Thereafter such proceedings were taken by the board of estimate and apportionment in condemnation as resulted in an award of 9,100 each for damage parcels Nos. 3 and- 4 to the respondent Bernheimer, and from the confirmation of such awards the Portland Realty Company appeals..
It is conceded that all proceedings were regular, but the Portland Realty Company being an abutting owner, and being assessed for benefits to pay the damage awarded, appeals on the ground that the awards to Bernheimer should have been nominal only, because the parcels for *527which he was given substantial damage were burdened with the easements of light, air and access, and that, therefore, the awards to him should have been only nominal.
Prior to March 31, 1905, the. entire tract of land between Amsterdam avenue and Audubon avenue, and through which West One Hundred and Seventy-seventh street, from Broadway to Riverside drive, was projected, was owned by a, common owner, and no street had been laid out by such owner and no right of way existed thereon. After the city had tiled its map showing where West One Hundred and Seventy-seventh street was to be extended, and .before condemnation proceedings were instituted in February, 1906, this common owner conveyed on the 31st day of May, 1905, the entire tract in controversy to one Thorn, and by mesne conveyances such premises were on the 12th day of June, 1905, conveyed to the respondent Bernheimer.
The tract of land in question lay in the center of the block, between Amsterdam and Audubon avenues, and was 170 feet in width and extended northerly from the north, side of West One Hundred and Seventy-sixth street, as ultimately laid out, about 360 feet, so that when West One Hundred and Seventy-seventh street was cut through there were lots on both sides of that street, as well as on the northerly side of West One Hundred and ’ Seventy-sixth street. On the 20th day of June, 1905, Bernheimer deeded the premises in two separate parcels to Perlman and Bernikow. The first painel was described as “ beginning at a point on the northerly side of a strip of land laid out by the city of. Méw York and designated as One Hundred and Seventy-sixth street,” a certain number of feet easterly of Audubon avenue, running thence northerly 199.83 feet (West One Hundred and Seventy-seventh street not being mentioned) and thence easterly the requisite number of feet to take in the parcél; thence southerly the same number of feet' which the line had been run to the north (which would strike the northerly side of West One Hundred and Seventy-sixth street), and thence westerly a certain number of feet to the place of beginning. The second parcel was described as “ beginning at a point on the northerly side of a strip of land laid out by'the city óf Mew York and designated as 177th Street,” running thence easterly a certain number of feet, and so around the parcel to the place of beginning.' *528By these descriptions the block between West One Hundred' and Seventy-sixth street and One Hundred and Seventy-seventh street as extended, and to the sides of each, was conveyed, as well as that plot lying on the northerly side of One Hundred and Seventy-seventh street as projected. Following these descriptions the deed provided as follows: “It is expressly understood that no right, title or interest of the party of the first part in the said strip of land so laid out and designated as 176th and 177th streets is conveyed or affected by the foregoing descriptions; and that the land within the lines of said streets and any award which may be made for same, are hereby reserved to the party of the first part.” When Bernheimer had contracted to convey to Perlman and'Bernikow, and on the same, day on which he entered into such contract (in which his right to any award for the laying out of the streets was also reserved) he entered into a contract with'Perlman and Bernikow that in consideration Of their erecting certain specified buildings upon said, premises fronting.on the north side of One Hundred and Seventy-sixth street and on the north and south side of One Hundred and Seventy-seventh street within a certain time, he would repurchase the property at a certain price. Perlman and Bernikow did not complete the improvements on One Hundred and Seventy-seventh street within the specified time and Bernheimer repurchased from them only the tract fronting on One Hundred and. Seventh-sixth street. Thereafter Perlman and Bernikow by two separate descriptions conveyed the lots on the north and south sides of One Hundred and Seventy-seventh street, bounding the sanie “ by the * * * side of a strip of land laid out by the city of New York and designated as One hundred and Seventy-seventh street,” to the appellant,, the Portland Bealty Company.- . ■
The land taken by the city for One Hundred and Seventy-seventh street and reserved by Bernheimer is designated as damage parcels Nos: 3 and 4, and lands owned by the appellant, the Portland Bealty Company, are separately designated as benefit parcels Nos. 193 to 196, both inclusive, and 212 to 215, both inclusive. The strips óf land lying at the sides and between the parcels, conveyed to the appellant and Amsterdam and Audubon avenues were owned by other parties and respondent Bernheimer had no interest in them.
*529Bernheimer, therefore, could give no right of way to his grantees to either Amsterdam avenue or Audubon avenue because he did not own to the side of either.
What the appellant insists is that the property having been deeded in contemplation of the opening of a street by the city the land reserved by the grantor which was to be and was taken for such street must be deemed to have been burdened in favor of abutting lots with the easements of light, air and access, and hence, when the city ultimately took it, only nominal damages arose; and that its land being assessed for benefits it is aggrieved because it has to contribute to the payment of the substantial award made.
I am of opinion that the principle enunciated in Matter of City of New York (196 N. Y. 286) and Matter, of One Hundred & Sixteenth Street (1 App. Div. 436) and kindred cases does not apply. In those cases the city instituted proceedings to acquire the fee to lands upon which a street had already been laid out and used. The owner' had either laid out the street himself in cutting his property up into lots, and had conveyed the various parcels on both sides of the street according to the street, and retained to himself, the title to the fee of the street or he had adopted an existing street and done the same thing, and when the street was converted from a private right of way to a public right of 'way claimed that substantial damages should be awarded to him for the land for the street which he had reserved. Under such circumstances the courts held, and with great reason, that he was entitled to only nominal damages because the land which he retained in himself was already burdened with all the uses of a street, and that the changing of a street from a private one to a public one only accomplished the purpose of continuing it as a street.
In the present case the situation is wholly different. Ho street existed through the land where West One Hundred and Seventy-seventh street was extended, nor did Bernheimer lay out any. It is true that in his descriptions lie referred to the fact that the city of Hew York ivas about to lay out one, but he was careful to restrict his boundaries to the sides of the proposed street and to reserve to himself all “ right, title or interest ” in the' land which he supposed would be appropriated for a public street, and to reserve to *530himself any award which might be made for the same. His grantees assented to this and it must be assumed that by so doing they abandoned any easements they might have over the land reserved, if they ever had any.
As between the city and BeruheimerJ the city does not claim that Bernheimer is not entitled to a substantial award for the land taken, or that there was any dedication on his part, and it is manifest from the contract, deed and reservations that none of the parties understood that Bernheimer was dedicating any land for street purposes, or that his grantees were entitled to any right of way from necessity or otherwise over the land which he. reserved to himself. On' the contrary, all parties expected that a right of way would be provided by the taking of the land by the city in its extension of West One Hundred and Seventy-seventh street from Broadway to Riverside- drive.
I am'of the opinion, therefore, that the award was properly con. firmed, and that the order appealed from should be affirmed, with costs.
Order reversed, motion to confirm denied- and matter remitted to commissioners as stated in opinion. Settle order on notice.