Neither the notice of application to condemn, nor any subsequent document or notice in this proceeding showed any intention to take the property on which appellant’s mortgage was a lien. Further, they failed to show any intention to close the Mott Haven canal on which appellant’s property fronted. The proceeding was one to widen 135th street, the nearest line of which was 450 feet south of appellant’s property. An existing State statute (L. 1896, ch. 623) required that a bridge constructed over the Mott Haven canal at 135th street was to be erected so as to maintain the width and depth of the canal at that place. Under these circumstances there seems to be no basis for a finding that appellant had notice of the pendency of any proceeding to take any easement appurtenant to its property, unless this was to be inferred from an examination of the rule maps. But the rule maps did not show that the canal was to be closed, nor did the draft damage map, which was approved after the vesting of title, indicate any such intention. Parcel “ F ” as shown on the rule maps, and Parcel “ 29 ” *351as shown on the draft damage map merely indicate that these parcels were to be taken for the widening of 135th street. They show the continued existence of the canal on both sides of the widened street. In view of the provisions of the statute referred to above, the inference would be that a bridge was to be continued over the canal at 135th street. None of the maps showed that the canal itself was being condemned.
For these reasons there was no notice to persons owning property facing the canal, other than, perhaps, those owning the particular parcels actually taken in fee which fronted thereon, that easements appurtenant to such properties were to be extinguished. A landowner, or one holding a lien thereon, is entitled to notice of pendency of proceedings in which his property is to be taken. Notice by publication in the manner, time and place provided by statute is sufficient. (Matter of Mayor, etc., of City of New York, 99 N. Y. 569, 581.) But the notice published must reasonably apprise the owner or land lord of the intention to take his property. And where the damage arises from the nature of the use to which the condemned property is to be put, it is only when such use becomes actual or threatened that an owner has the right to damages. (Vanneck Realty Corp. v. City of New York, 284 N. Y. 403.)
Here the affidavit submitted on behalf of the city states that the owners of easements who appeared claimed that they were entitled to damages “ because of the nature of the construction of the highway for the acquisition of which the lands described in the published notice ” were being taken. It is only where the resolution to condemn for street purposes is to be construed as providing for the condemnation of greater rights than usually follow such taking that an owner is required to assert this claim for additional damages in the condemnation proceeding for the taking of the street. (Vanneck Realty Corp. v. City of New York, supra.) The nature of the improvement may undoubtedly be considered by the court in determining the amount of damage sustained by those properly before the court. (Matter of City of New York [Rockaway Beach], 288 N. Y. 75.) It does not follow from this that knowledge of the form of construction of the proposed improvement which may have been acquired by some property owners, in some manner other than by publication of due notice, would be sufficient legal notice to all property owners of proceedings to condemn.
Provision is made by statute giving the trial court power to correct damage maps so as to add thereto additional parcels where necessary, but this statute provides for a new publication and posting notice. (Greater New York Charter, § 994.)
*352Under the circumstances the action of the court in the present proceedings was ineffectual to cut off the rights of appellant unless section 994 of the Charter was complied with.
Matter of Canal Place (64 App. Div. 604) related to that portion of Mott Haven canal north of 138th street, whereas the parcel here concerned is south of 138th street. The latter portion of the canal existed since 1855. The problem before us is not one concerning title to the canal, nor the authority of the City of New York to change from one public use to another; it is whether the city gave notice of its intention to close the canal sufficient to apprise appellant that its property was being taken.
The rule of law that payment of an award to an owner is binding on the mortgagee of the property condemned unless' such mortgagee makes a claim to the award (Merriman v. City of New York, 227 N. Y. 279), undoubtedly rests on the premise that adequate notice of intention to condemn has been given. The decision last cited makes this evident, because it is reasoned therein that the mortgagee might be satisfied to continue his loan despite the taking. But such a choice cannot be exercised by the mortgagee unless he has notice of the proceeding. In addition, in the absence of adequate notice of the proceedings, due process would be lacking.
The order should be reversed and the motion granted.
Martin, P. J., Glennon and Cohn, JJ., concur with Dore, J.; Callahan, J., dissents and votes to reverse and grant the motion.
Order affirmed, with costs and disbursements.