(dissenting):
I dissent. It is conceded that Juniper Swamp road was a lawful public street and had existed as such for more than twenty years, and it is shown by the map that for a distance of about seven hundred feet along the front of petitioner’s land the southwest line of Juniper Swamp road is moved to the east away from petitioner’s land a maximum distance of about fifteen feet. It is conceded that the remainder of the highway, thirty-five feet in width, is continued as a part of the new street, is used and was being used as a public street when the map was filed. The fifteen-foot plot is not included in “ Juniper avenue ” as laid out on said map. It lies between petitioner’s land and the boundary of said avenue, and it became legally closed when the map was filed.
The intent to discontinue and close so much of the highway as is represented by this strip of land is not denied, the respondent’s easement in the closed strip is extinguished, and the title thereto will revert to the former owner in fee. I think that the respondent’s claim for the damage sustained is enforcible now. The sole dispute and the controversy here relates to the date when the closing occurred. If the street was in fact legally closed, I do not regard it essential to the appointment of commissioners that the fact be judicially determined in advance. It is sufficient if such a determination is made dun ing the pendency of the proceeding.
The purpose and effect of the statute under consideration is stated in Matter of City of New York (Walton Avenue) (145 App. Div. 855; affd., 204 N. Y. 670), and the rule with which the respondent must comply is stated in Matter of Mayor, etc. (Spuyten Duyvil Road) (152 App. Div. 114, 117; affd., 208 N. Y. 592) in the following language: “In order to justify an award to any property owner under the section above quoted it is essential that he shall establish the jurisdictional facts which entitle him to this particular relief, that is to say, that the public authorities have instituted a proceeding for opening a street or public place contiguous to or in the neighborhood of a lot or parcel of ground, owned by the petitioner or in which he has an interest, and which fronts upon a street or other public place which they (the public authorities) c have discontinued *296and closed as aforesaid.’ It is as essential that the street or public place shall have been closed and discontinued as that the petitioner’s property shall front on the closed or discontinued thoroughfare.”
If the Juniper Swamp road had been continued permanently, as it then existed, as a highway, and, as such, part of the adopted permanent street system, the filing of the final map operated to immediately close all streets shown as discontinued in the several blocks bounded by it. This I understand to be the precise rule declared in Matter of Mayor, etc. (Walton Avenue) (131 App. Div. 696; affd., 191 N. Y. 518), in which the contention of the city was practically the same as in the case at bar.
I am unable to concur in the contention that the intent of the statute is, that in order to have a continued street given that effect, it must be a street of the same dimensions as to width as the one shown on the final map, and it must also be of the same elevation as to grade. In the case of Matter of City of New York (192 N. Y. 459) the court establishes the test of the closing of the discontinued street as being the actual physical opening of the proposed permanent street. I think a street within this rule is opened when it is available for public travel and affords access between its commencement and termination, and the continued portion of the J uniper Swamp road satisfies this test. I do not understand the city to dispute the contention that there was, or is to be, a closing of the Juniper Swamp road so far as that portion of its roadbed lying between the boundary line of the new J upiter avenue and the front of respondent’s property is concerned. Such a contention could not be sustained (People ex rel. Winthrop v. Delany, 120 App. Div. 801; affd. sub nom. People ex rel. Winthrop v. Pendleton, 192 N. Y. 533), and I must vote to affirm the order.
Order reversed, with ten -dollars costs and disbursements, and motion denied, with ten dollars costs.