The city of New York appeals from an order referring to the commissioners of estimate and assessment appointed in this proceeding, the claim of Mary E. Farrelly for damages resulting from the closing of Graham street in front of and adjoining property owned by said petitioner.
The only question in the case is whether or not Graham street is a public highway. If it is the petitioner is entitled to damages, for the destruction of both her public and private easements resulting from the official closing of the street. (Barber v. Woolf, 216 N. Y. 7.)
If, however, Graham street is not and never was a public street, as claimed by appellant, but merely a private street *178or way laid out and used by the owners of the adjacent property for their own benefit, it is not within the purview of the Street Closing Act; is not in anywise affected by the present proceeding and the respondent can claim no damages because it is not proposed to continue it as a public street. (Matter of Mayor, 41 App. Div. 586, 593; Matter of Mayor, etc. [Walton Avenue], 131 id. 696, 720; Matter of Olinger, 160 id. 96.) And the question whether or not it is a street for the closing of which damages may be awarded is one which must be determined by the court when an application is made for a reference to the commissioners. (Matter of City of New York [Juniper Avenue], 162 App. Div. 291; appeal dismissed, 213 N. Y. 654.)
Graham street, so called, is in that portion of the city of New York which formerly comprised the town of Westchester. Its first appearance on any map was on a private map of the Downing estate filed in the Westchester county register’s office on June 9, 1893, before the annexation of the town of Westchester to the city of New York. On this map it is shown as a cut de sac fifty feet in width commencing at Morris Park avenue and running northerly for a distance cf about 340 feet. The filing of this map, while it doubtless indicated a willingness or offer on the part of the owners of the property to dedicate the strip of land as a public street, did not serve to make it a public street. To effect that purpose an acceptance by the town of Westchester, or later by the city of New York, was necessary.
No formal acceptance by either was shown whether by way of a resolution of the proper municipal authorities, or by the filing of an official map showing said Graham street as one of the public streets of the city.
The first official map showing the territory as laid out into streets by the constituted authorities was filed in 1907. On this map the so-called Graham street was indicated by broken lines showing that it was not intended to be one of the public streets according to the plan then laid out. This certainly was hot equivalent to an acceptance of the street as a public street, or even as an acknowledgment that it ever had been a public street, but was rather a repudiation of its attempted dedication by its owners.
*179The next official map which was filed covering the same territory was so filed in 1911. On this map the streets to be opened were shown in exactly the same location as on the map of 1907, but the so-called Graham street was not indicated in any way.
It certainly cannot be said, therefore, that Graham street was ever formally accepted and adopted as a public street by any official map filed in pursuance of law by the public authorities.
The petitioner claims, however, that there was a practical acceptance of the street as a public thoroughfare evidenced by the acts of certain public officials with reference thereto. It is said that the street was for many years patrolled by the police, but this of course does not indicate an acceptance by the city, for it is the duty of the police to afford protection to private as well as public property. In 1905 the town of Westchester granted an electric lighting company a permit to lay mains in various streets of said town in pursuance of which the company laid mains in said Graham street, and in 1906 the owners of the abutting property laid a private sewer in the street under the authority and supervision of the president of the borough of The Bronx. Neither of these circumstances is sufficient to indicate an acceptance by the town or city of the street as a public street. That question was not presented to the officials who granted the permits, and was not one which they were called upon or were authorized to pass upon so as to bind the city to an acceptance of the street. Other similar acts by public officers are also relied upon by petitioner, but since they all occurred after the filing of the map of 1907 by which the city formally indicated the non-acceptance of the street, they do not require further consideration.
Our conclusion is that it does not appear that Graham street was ever a public street or was closed in this proceeding. Consequently the petitioner can claim no damages as a result of the closing and her petition should have been denied.
A majority of.the court while agreeing that the private way known as Graham street was never accepted by the city, and never became in any sense a public street or way, or a *180part of the city’s street system, are of the opinion that the owners of property abutting upon it are entitled to com" pensation, because the city of New York failed to include it either in the map of 1907 or that of 1911 as a street to be continued. This omission is treated by them as a “ closing ” of the way under the Street Closing Act of 1895 (Laws of 1895, chap. 1006). It is clear that the effect of thus omitting to include it will not necessarily be to physically close the way so that it may no longer be used as a means of access to the houses fronting upon it, or of egress from those houses through it to Morris Park avenue, upon which it debouches and which is a part of the general street system. Indeed, if the owners of the bed of the so-called Graham- street elect to continue its use as a driveway or private approach to their houses I know of no authority vested in the city to compel them to desist and put the property to some other use. In short, after the so-called closing they would have the right to continue to use the way precisely as they do at present. What we have then is a strip of land, not included in any street and which never legally became a public street or way, as to which the owners of the property on either side have agreed inter sese .that they shall each have the right to use it as a means of.approach to their property. To award them compensation for the refusal of the city to recognize and adopt this private way as a part of the public street system would be to impose upon the city, or the property owners within the assessment area, a charge or tax for the private benefit of those who have agreed that the way should be used in common. To construe the Street Closing Act so as to permit this to be done would render it of doubtful constitutionality in this particular. I recognize that the language of the opinion in Barber v. Woolf {supra), upon which the majority opinion rests, if read without regard to the facts before the Court of Appeals, might be construed to cover a case like the present. But the facts of that case were quite different from those presented here. The question there was as to the right to compensation for the destruction of easements, private as well as public, in Seventh avenue, a street which first appeared on a private map filed in 1854, and which was continued and adopted as a city street on a *181map filed by the park department in 1879. It thus became, although not actually opened and worked, one of the public streets of the city, the adoption by the park department being equivalent to an acceptance by the city of the dedication attempted to be made when the private map was filed. It was with reference to such a street and the private and public easements over it that Chief Judge' Bartlett used the language quoted by my brother Shearn. That language, Eke that in every judicial utterance, should be read with reference to the facts of the particular case in which it was written. (Colonial City Traction Co. v. Kingston R. R. Co., 154 N. Y. 493; Hogan v. Board of Education, 200 id. 370.) So read the case cited is not an authority for the order appealed from.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied.
Laughlin, J., concurred.
Order affirmed, with ten dollars costs and disbursements.