The respondent’s grantor was the owner of a parcel of land having a frontage of some 800 feet on the southwesterly side of a highway in the borough of Queens, known locally as Juniper Swamp road, and referred to in this proceeding as Old Jumper avenue. This road, approximately 50 feet in width, had been used as a highway for a great many years, hut to the bed thereof neither the city of New York nor any of the municipalities which it succeeded had ever acquired the fee.
In the year 1908 a permanent street system was planned for the area which included this old road, and section IV of the final maps of the borough of Queens, showing such street system, was approved, adopted and filed. This map provided for a new thoroughfare, to be known as Juniper avenue, to be eighty feet in width, to lie partly within and partly without the bounding lines of Juniper Swamp road, and to be from one to four feet higher in grade.
After the filing of the map the respondent presented a petition wherein it prayed for an order, pursuant to section 14 of chapter 1006 of the Laws of 1895, directing that the commissioners of estimate and assessment, appointed to acquire title to land in Juniper avenue, be authorized to ascertain and determine the compensation which should justly be made to the petitioner by reason of the discontinuance and closing of Juniper Swamp road, and that the commissioners include the award of damages therefor in their report. The motion having come on to be heard, the Special Term made an order the decretal part of which reads.
“Ordered, That the claim of Jere Johnson, Jr., Company, the petitioner herein, be and the same hereby is referred to the said Commissioners of Estimate and Assessment to take proof *293relative to the said claim, and if, upon proof of all the facts, the said Commissioners shall find that said Juniper Avenue was a lawful public street and had been legally closed, the said Commissioners be and they hereby are directed to ascertain and determine the compensation, if any, to which the said claimant is legally entitled for the loss and damage, if any, sustained by or in connection with the premises described in the said petition, by reason of the closing, discontinuance and abandonment of said Juniper Avenue, in front of and adjoining said premises, and to make a separate award therefor, in the report to be made by them, pursuant to Chapter 1006 of the Laws of 1895.”
From this order the city appeals.
The order delegates to the commissioners the duty of determining whether Juniper Swamp road was a lawful public street and that it had been legally closed. The establishment of these propositions is jurisdictional, and they must be determined by the court before a reference to the commissioners to ascertain and determine compensation. (Laws of 1895, chap. 1006, § 4.) The order was made, therefore, without statutory authority.
The damages should be fixed as of the date when the first street bounding the block was actually physically opened for public use, and claims for damages filed before that time are prematurely filed. The damage is the damage of the owner who has title to the abutting property when the street becomes legally closed. (Matter of Mayor, etc. [Walton Avenue], 131 App. Div. 696, 712, 721; affd., 197 N. Y. 518; Matter of Mayor, etc. [East 172d Street], 141 App. Div. 623, 624.) In order, therefore, that damages should accrue upon the filing of section 17 of the final maps, it was necessary that such section should show, bounding the block in which the respondent’s property is situated, an open public street as one of the streets to be retained on the permanent map of the city. The section map does not show that. Juniper avenue has not been actually physically opened, and there is no claim that any other street or avenue has been.
The petitioner contends that because a part of Juniper Swamp road is to be included in the new Juniper avenue, so much at least *294of the new Juniper avenue as lies within the bed of Juniper Swamp road is actually physically opened, and that, therefore, the right to damage has accrued. It seems to us that the argument is not well founded. If the inclusion of any portion of an old street within the lines of a new street is sufficient to make that new street physically open as to such included portion, the argument would be the same whether the portion so included was a foot wide or five feet wide, or, as in this case, nearly twenty feet wide. If the lines and grade of the new Juniper avenue were identical with those of the old thoroughfare, it might then be said that the street had been physically opened, within the meaning of the statute, so as to give rights under the statute to an owner of property within the block on which it abuts. This was the case of Jerome avenue in Matter of Walton Avenue (supra). But we think.it would be a dangerous construction to hold that if the permanent map, as filed, showed any portion, no matter how small, of the existing public street to be included within the boundaries of the new street, as laid down on said map, immediately it could be said by reason thereof that the street laid down on the new map had been opened within the meaning of section 2 of the statute, so as to give the then abutting owner an immediate right to damage.
No particular burden will be imposed upon the petitioner by compelling it to wait until the pending proceedings for the opening of Juniper avenue shall have been completed, or until that street or any other street bounding the block shall have been actually physically opened. Having taken this position successfully, the city would be estopped from claiming that the Statute of Limitations had run against its claim, or that the statute began to operate before the completion of such proceedings. If, in the meantime, the petitioner does not transfer its property, its right to damages will accrue. If it does transfer, the city will be spared the possibility of having to pay damages twice.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Burr, Stapleton and Putnam, JJ., concurred; Rich, J., read for affirmance; Thomas, J., not voting.