The jurisdictional requirements in the acquisition of real property for the widening of East 135th street for the westerly approach to the Triborough bridge, borough of the Bronx, were properly complied with.
The Board of Estimate and Apportionment on October 20, 1936, authorized the taking in fee of the real property required for'the extension and widening of East 135th street for the use of the public, and approved a rule map including, among others, a parcel designated “ Parcel F,” a strip of land running across the Mott Haven canal on the northerly side of East 135th street. This was done on notice duly published in the City Record pursuant to Greater New York Charter (L. 1901, ch. 466) then in effect for an order of condemnation. (§ 1000.) A notice containing a general description of the real property to be acquired by metes and bounds, including “ Parcel F,” was duly published, requiring every person interested in the property to be taken to file his claim and proof of title.
Title vested in the city on November 4, 1936. A draft map was prepared by the president of the Borough of the Bronx and approved by the Board of Estimate on December 18, 1936, showing Damage Parcel No. 29 in the bed of the Mott Haven canal at East 135th street.
Owners of real property along the canal, claiming to be affected by the improvement, filed claims for consequential damages by reason of shutting off access to the canal north of 135th street. Tentative awards were made including an award to the owner of Damage Parcel No. 381. Notice of the filing of the tentative decree was duly published in the City Record, as *349provided by the Charter (§ 1002). Objections were filed and overruled as to Damage Parcel No. 381. The owner of that damage parcel successfully prosecuted an appeal to the Court of Appeals on the ground of inadequacy. (Matter of City of New York [Exterior Street], 285 N. Y. 455.) Thereafter such owner filed affidavits stating there were no mortgages on the property and on April 20, 1938, thus collected the award in the sum of $23,272.80.
On September 26, 1940, appellant herein, mortgagee of the premises known as Damage Parcel No. 381, appearing specially, moved to vacate and set aside, as against it, the final decree, on the ground that the proceedings as to Damage Parcel No. 381 were without jurisdiction. This application was made two and a half years after payment of the award and nearly four years after the date of vesting of title in the condemnation proceedings. Special Term correctly denied the application without prejudice to any rights the appellant had against the fee owner under Greater New York Charter, section 983, providing that where an award has been paid to a person not entitled thereto, the person to whom it ought to have been paid may sue for and recover the same.
Under Greater New York Charter, section 969, subdivision 4, the term “ real property ” included all lands, easements, and every estate, interest, and right in lands. Appellant was not entitled to any notice other than that provided by statute. (Matter of Mayor, etc., of City of New York, 99 N. Y. 569.) The notice given showed that the City was acquiring a fee for street purposes in the widened portions of East 135th street through which the waters of the Mott Haven canal then passed. The easement of access was destroyed by reason of the use, permanent in character, to which the property taken in fee was put by the city acquiring it. It is immaterial that the property consequentially damaged was completely outside the northerly line of the taking in fee. (Matter of City of New York [Rockaway Beach], 288 N. Y. 75; Matter of City of New York [East River Drive], 264 App. Div. 555, 563.)
That the notice given was in fact adequate is shown by the appearance in the proceeding of the owners of parcels of land abutting on the canal between 135th and 138th streets, including the owner of Damage Parcel No. 381. They filed their claims and received awards for the consequential damage resulting to their property from this public improvement.
The payment made by the city to the person named in the final decree, in the absence of any prior demand from the mort*350gagee or others claiming an interest therein, was proper, and the constructive notices provided by the Charter, sufficient. This was held in a case in which it was said that the commissioners in condemnation had notice of the mortgage. (Merriman v. City of New York, 227 N. Y. 279, 284.) In the Merriman case, as here, (1) the mortgagee never served notice of any claim but defaulted in asserting a claim for damages by reason of the taking, and (2) there was no fraud or bad faith on the part of the comptroller or the city.
This court has ruled that the Mott Haven canal was a private waterway (Matter of Canal Place, 64 App. Div. 604), held, however, by the city not in its sovereign but in its proprietary capacity. Hence it was necessary that the city acquire the fee in its sovereign capacity for street purposes in the widened portions of 135th street through which the canal passed. Chapter 623 of the Laws of 1896 provided for a bridge to conform with the then width and grade of 135th street and is not inconsistent with the Charter provisions herein complied with, permitting the city to extend and widen 135th street after taking' the bed of the canal in fee and erecting a widened highway that does not interfere with but facilitates the passage over the said street.
The order of Special Term denying appellant’s motion to vacate the final decree in so far as it affects Damage Parcel No. 381 should be affirmed, with costs and disbursements.