(concurring in part and dissenting in part):
The appellant acquired title to damage parcels 10B, 12C, 7, 8, 9, 10A and 12B from the Kingsbridge Company after the auction sale by that company, and, therefore, subject to the rights of the purchasers at such sale. The appellant was *245awarded nominal damages only for each of these parcels. Those awards were evidently made on the theory that the parcels are subject to easements in favor of the purchasers at the auction sale or of some of them. On the map on which appellant’s grantor induced the purchase of lots at the auction sale damage parcels 10B and 12C were shown as a “Park,” and damage parcels 7, 8, 9,10A and the part of 12B not within the lines of Bailey avenue were shown as “ Harlem Biver Terrace ” (now Heath avenue). The entire tract evidently had been attractively plotted in a manner to render the lots most desirable and salable to the best advantage, and manifestly the park was not so designated on the theory that it was waste land or without value but rather presumptively to enhance the value of the subdivision lots which nearly surrounded it, and the terrace, while probably designed principally for public street purposes, was laid out over the highest land. I am of opinion that purchasers at the auction sale, as between them and their grantor, acquired easements in the park at least and were entitled to have the premises so shown on the map kept open for use and enjoyment for park purposes in perpetuity. (White v. Moore, 139 App. Div. 269; 73 Misc. Rep. 96. See, also, Foster v. City of Buffalo, 64 How. Pr. 127; Johnson v. Shelter Island G. & C. M. Assn., 122 N. Y. 330.) I am, therefore, unable to concur with the majority of the court in holding, according to the opinion of Mr. Justice Sgott, that the damage parcels so marked “ Park ” are not subject to any easements and that appellant is entitled to a full award therefor.
With respect to said damage parcels which were shown on the map as part of “ Harlem River Terrace ” I am of opinion that even under the rule prescribed by the Court of Appeals in Reis v. City of New York (188 N. Y. 58) those parcels are subject to easements in favor of some at least of the purchasers at the auction sale whose lands are in the immediate vicinity. The Court of Appeals in that case by a unanimous vote held that the easements by implication acquired by a purchaser when his lands bound on other lands of the grantor, described or referred to as a street, are not for ingress or egress over the entire street, hut are limited to that part thereof upon which the block embracing his lands bounds, thus affording ingress *246and egress through the first cross street, and that all other parts of the street on which his lands hound may be as effectively closed as if the street had been designated or shown, as extending to the first cross street only. The court was of opinion that in that case the reference in the conveyance to the street was intended merely to give the grantee an easement for ingress and egress; but it recognized that such grants are to be construed according to the intention of the parties.
Moreover, the real basis for the rule applied in the Reis case is public necessity and convenience when in the exercise of the sovereign power it becomes necessary to appropriate lands held for public street purposes to other uses, as is shown by the facts of that case and of the earlier case of Hier v. New York, W. S. & B. R. Co. (40 Hun, 310; affd., 109 N. Y. 659), and it should not be applied in favor of the grantor as against his grantee or the public. The point as to whether a grantee of land, induced to purchase by the fact that his land is one of many advantageously and attractively plotted by the same owner into large lots, fronting on broad avenues, and perhaps radiating from or leading to a central park designed for the use and enjoyment of all and calculated to enhance the value of all of the subdivision lots, acquires an easement m the public place or park, or in any avenue other than in that part of the one on which his lot is bounded, and in that only for the block, was not presented for decision, 'nor was any opinion expressed thereon. It is manifest, I think, that in all such cases there would be an intention to give such easements and that the grantees could require the grantor to continue his remaining premises as thus plotted. In the case at bar I am of opinion that the grantor intended to give some, if not all, of the grantees easements by implication in the other damage parcels to which reference, has been made, which were shown on the map, pursuant to which the auction sale was conducted, as part of “Harlem River Terrace.” For example, subdivision lots 8A and 9A fronting on “Harlem River Terrace” had no outlet excepting on said terrace, and the map showed that they were accessible to Bailey avenue on the east by going northeasterly through “Harlem River Terrace,” and that the only other manner in which the *247purchasers thereof could obtain access to Bailey avenue would be by going southerly along the terrace to a cross street far beyond the premises sub-divided, and then doubling back by a route several times longer than by the route shown on the map pursuant to which they were induced to purchase. If I am right with respect to the grantees at the auction sale acquiring easements in the “ Park,” it necessarily follows that they have easements in the streets to enable them to reach and enjoy the park. I am of opinion, therefore, that the grantor was not at liberty, as against the purchasers at the auction sale, to close “Harlem River Terrace,” and also that such damage parcels were subject to easements in perpetuity in favor of some, at least, of the grantees.
I agree with Mr. Justice Scott that all of the other parcels conveyed to the appellant are subject to easements, and that, therefore, the appellant was not entitled to awards on the theory that they are free from easements; but I am of opinion that the appellant is entitled to substantial, as distinguished from nominal, awards for such of them as are part of Bailey avenue in front of premises the title to which was retained by the grantor, as well as for those in Heath avenue abutting on premises the title to which was retained by the grantor. The purchasers at the auction sale, who acquired title to the fee of the street, have been awarded twenty-five dollars or more per parcel for such fee. If the Kingsbridge Company, instead of conveying to the appellant, had retained title to the fee in the streets subject to the easements acquired by its grantees, it would have been entitled to awards on the same basis, and at least equal to those made to its grantees. The awards of twenty-five dollars or more per parcel were made doubtless on the theory that where the fee to the street is owned by the abutting owner, it is of special value to him for many purposes not inconsistent with the use to which it was subject on account of the private easements, and that would be so even if there had been a dedication for public street purposes, and that he is, therefore, entitled to a substantial award, notwithstanding the fact that such fee is subject to private easements. (City of Buffalo v. Pratt, 131 N. Y. 293; Matter of One Hundred & Sixteenth Street, 1 App. Div. 436; Rasch v. *248Nassau Electric R. R. Co., 198 N. Y. 385; Mayne v. Nassau Electric R. R. Co., 151 App. Div. 75.) I am of opinion that on the evidence adduced before the commissioners, awards should have been made to the appellant in the same amounts as if its grantor had not conveyed and were itself presenting the claims, for it was shown by the city before the commissioners that the conveyance to appellant, although in form a deed, was in effect a mortgage to secure it against the liability it assumed to the purchasers at the auction sale in guaranteeing them against assessments in this proceeding and to protect them with respect to their easements if this proceeding should be discontinued, and that the appellant is obliged to account to its grantor for any awards made herein after satsifying or discharging such liability. That agreement, according to the evidence, rests in parol; but, since the city proved it, I am of opinion that it cannot now be heard to say that the agreement was invalid.
In all other respects I concur in the opinion.of Mr. Justice Scott.
• Order reversed, with ten dollars costs and disbursements, and the matter sent back to same commissioners to proceed in accordance with opinion. Order to be settled on notice.