This is a submission of a controversy upon admitted facts. The plaintiff claims to recover $1,000 from the defendant, for her interest in a lot of land in the city of New York, which he has agreed to purchase. The case states that the lot was owned by Smith Bloomfield in his life time, and that he died in the year 1865, leaving a last will and testament, which has been proved, by which he devised the equal fifteenth part of this lot to the plaintiff. The-executors had power of sale under the will, and in the execution of it, on the 1st day of February, 1866, they conveyed a lot of land by a description commencing as follows : “Beginning at the northeasterly corner of Sixty-seventh street and the Third avenue, and running thence easterly along the northerly side of Sixty-seventh street.” On the same day the executors conveyed another lot of land by a description commencing as follows : “ Beginning at the south-easterly corner of Sixty-seventh street and the Third avenue,, and running thence easterly along the southerly side of Sixty-seventh, street.” These lots both front on Third avenue, and the lot in question lies between them, and is 100 feet deep and sixty feet front on Third avenue. On a map of the city made in 1811, a. street is laid down over this lot called Sixty-seventh street, but it. never was opened; no owner of the land ever consented that there should.be a street there.
The defendant has agreed, by writing, to purchase the interest of the plaintiff in this lot, and she has tendered him an executed deed of conveyance therefor, which he refused to accept because the grantees, in the two conveyances above mentioned, have acquired the right to the use of Sixty-seventh street as an open way, and the question submitted is : Did the executors of Smith Bloomfield, by describing the property conveyed by them in the two deeds mentioned, in manner described, dedicate the property in question as a street or give to the purchasers any right to have the same maintained as a street, or give said purchasers any right to use the same as a street, as against the owners of the fee under the devise in the will of Smith Bloomfield ? It may be observed at the outset, that this lot did not pass as an appurtenant to the lots granted by the executors for the reason that it never was so used.
Where the owner of land lays it off in lots and plots and inter*222sects it with streets and avenues, and makes conveyances of tbe lots in wbicli the streets and avenues are designated as boundaries, the use thereof, as between the parties to the grant, becomes an easement annexed to the estate granted, and the grantees acquire the right to have the same remain open for their use. (Taylor v. Hopper, 62 N. Y., 649.)
In this case several essential elements are wanting to bring it within this rule of law. Ve may assume, although it is not stated, that the map mentioned in the statement was not. made by an owner of this land, as it was a map of the city of New York, and there is, therefore, the entire absence of action by the owner' evincing any disposition to set apart this lot for a street.
In the next place the conveyances of the lots on the northerly and southerly sides of the lot in question, in which the street is named as a boundary, were not made by the owner or owners of this lot and their estates therein cannot be prejudiced or diminished thereby.
As we understand the statement, the executors took no interest in this land under the will, but merely a naked power, in trust, the title being all the while vested in the devisees under the will, of which the plaintiff is one.
It was competent for these devisees to convey this property and thus extinguish the power of the executors to convey the • same. (Prentice v. Janssen, 79 N. Y., 478.) But even though this was not done, it was beyond the scope of the executors’ power to create incidental rights or easements therein.
Our conclusion is that the ownership of the plaintiff to the undivided fifteenth part of this lot of land is complete and unimpaired, and that she should be permitted a recovery in this action.
Judgment for the plaintiff, with costs.
Gilbert, J., concurred; Barnard, P. J., dissented.Judgment for plaintiff upon submitted case, with costs.