The judgment should be modified. We hold:
1. The locus in quo is not a public highway. (210 N. Y. 168.) But plaintiff’s premises are burdened with a private right of way in the nature of an easement, coextensive with the bounds of Thirteenth street as delineated on the Gosseline map; that the plaintiff has only the naked fee and is entitled to only nominal damages for subjecting such lands to the additional use of a public street. (Matter of Village of Olean v. Steyner, 135 N. Y. 345; Wyman v. Mayor, 11 Wend. 486; Kerrigan v. Backus, 69 App. Div. 329.) And a court of equity is not required to issue an injunction to protect a mere technical right. (McCann v. Chasm Power Co., 211 N. Y. 301.)
2. Although the city, in attempting to open Thirteenth street, acted upon the petition of persons having a private right of way over the same, it did not have the right to subject said lands to the further burden of a public street without making compensation therefor to the owner.
3. Ordinarily the city would be required to resort to condemnation proceedings to acquire the land for street purposes, but this being an action in equity, in which the rights of the respective parties may be adjudicated, provision may be made for acquiring the same without resorting to that proceeding. (Pappenheim v. Metropolitan Elevated R. Co., 128 N. Y. 436.)
4. The finding that the plaintiff’s premises are not and have never been burdened with or subject to a private easement or private right of way; that none of the deeds in plaintiff’s
5. The judgment should be affirmed, with costs, unless the defendant shall pay to the plaintiff the nominal damages and the costs of this action, including the costs of this appeal, upon receiving a conveyance from the plaintiff of his right, title and interest in the lands described in the complaint for street purposes only, so far as they are included within the bounds of Thirteenth street, and permit the plaintiff a reasonable time to remove the building from said lands. The time within which such damages and costs are to be paid and the house removed to be fixed in the judgment, which may be settled on two days’ notice.
All concurred, except Foote and Htjbbs, JJ., who dissented, and voted for affirmance in a memorandum by Foote, J.