The defendants, the park commissioners, by their de- - murrer admit the facts stated in the writ, but challenge the right of the relator to require them to remove the obstructions placed across Loring avenue and Oak Grove avenue, where they intersect Humboldt Parkway; their contention in that behalf, as I understand it, being that no legal highway was ever effected across the parkway at these points, and that in any event the park commissioners may at any time withdraw the consent heretofore given by their predecessors in office, and acted upon in opening- said avenues across said parkway, and may close the avenues where they cross the parkway at any time, when, in their judgment, it is deemed advisable to do so.
By the park act (chapter 165, p. 293, of the Laws of 1869), under which the board of park commissioners was originally organized, the board was given full and exclusive power to govern, maintain, -and direct, and lay out and regulate, parks and approaches thereto, and the streets connecting the same, possessing all the power and authority of the common council of the city respecting public squares and places in the city, and this power and authority the park commissioners have ever since continued to exercise. The act' provided for acquiring lands for parks and approaches thereto by condemnation proceedings, and it was provided by the eleventh section of the act that:
“The said lands shall vest forever in the city of Buffalo, for the uses and purposes in this act mentioned, and the said park commissioners shall be entitled to enter upon, take possession of, and forever use the said land for the purposes of a park or parks, approaches thereto, and streets connecting the same.”
And by the fourth section of the act it was provided;
“And the parts of all streets, avenues and highways, now laid out as running through said pieces of land, are hereby closed and discontinued so far as the same would run through or intersect said pieces of land.”
In 1885 the charter of the city of Buffalo was revised (chapter 181, p. 320, of the Laws of 1885), and certain sections were included therein relating to parks. The power of the park commissioners after this revision of the city charter was passed upon by the Court of Appeals in the case of Bork v. City of Buffalo et al., 127 N. Y. 64, 27 N. E. 355, which involved the validity of a contract for paving one of the parkways of the city, made by the park commissioners, and it was there held that the park commission was an independent department.of the city government, with power to locate parks, lay out approaches thereto, and appropriate and condemn lands for those purposes, and to *99maintain parks and approaches for the benefit of the city, independently and without the consent or approval of any other body or officer, and that the said addition and amendment to the city charter, in 1885, continued the park commission as such independent officers, retaining such exclusive power over the parks and approaches thereto.
It should be further noted that in the original act passed in 1869, in defining the general powers of the park commissioners regarding^ th? parks, approaches, and streets connecting the same, it was provided that they should have all the power and authority possessed by the common council of the city, in respect to the public squares and places in said city (section 81, c. 165, p. 301, of the Laws of 1869); while by the addition and amendment to the charter in 1885 it was provided that the park commissioners should have all the power and authority then possessed by the common council in respect to the public streets, sidewalks, squares, and places in said city (section 23, c. 181, p. 327, of the Laws of 1885), interpolating the words “streets” and “sidewalks.” The added section 23 was carried into the revision of the city charter passed March 27, 1891 (section 310, c. 105, p. 204, of the Laws of 1891), and is a substantial re-enactment as regards the provisions now under consideration, except that it is therein specifically provided that:
“No new street shall be laid out to intersect any park approach, without the consent of the park commissioners.” Section 310, c. 105, p. 204, of the Laws of 1891.
And it continues the former provision that the approaches shall be deemed to include all lands within the boundaries thereof and such portions as may be within the boundaries of intersecting streets, but giving the common council jurisdiction of the intersecting streets up to the curb line of the approach.
Section 391 of the revised city charter provides:
“The city may lay out, enlarge and alter parks, public grounds, squares, alleys, canals, basins, slips or other public waters, and cause them to be surveyed, described and recorded in a book to be kept by the city clerk.” Chapter 105, p. 221, of the Laws of 1891.
It is not claimed that Oak Grove avenue and Loring avenue are not public streets, except where they cross Humboldt Parkway. It is, however, contended by counsel for the respondents that neither the park commissioners nor any other city official had the right to lay out or make a street, by dedication or otherwise, across the park approach. As regards the amendment of 1891, forbidding a new steeet to be laid out to intersect a park approach without the consent of the park commissioners, he contends that the amendment means that .the common council may not lay out a street which will lead up to a parkway, and from which traffic shall pass to the parkway, without the consent of the park commissioners, but that the park commissioners have no power to lay out a street across the parkway.
I have no doubt the park commissioners could so limit their consent; but I think their power is not thus limited by the act. I think it includes authority to permit a street to cross over as well, and that under the facts and circumstances of this case the avenues in question *100became public highways at their intersection with Humboldt Parkway. If I am right in that regard, there remains but the single question as to whether the park commissioners may at will withdraw their former consent, which was absolute and unconditional, and unlimited as to time, and close the avenues at their intersection with the parkway, to the detriment of a property owner, such as the relator.
Section 394 of the city charter reads as follows:
“The city may discontinue or contract a street or alley, or any part of it, upon the written application of two-thirds in number of the owners of the lands fronting on the street or alley, the lineal front of whose lands shall constitute two-thirds of the lineal front of all the lands on the street or alley. A continuous street or alley, portions of which bear different names, is to be considered as a single street or alley.” Section 394, c. 105, p. 221, of the Laws of 1891.
The late Justice Childs had this question before him in the case of Holtz v. Diehl, 26 Misc. Rep. 224, 56 N. Y. Supp. 841, and he reached the conclusion there that the park commissioners have no authority to close any portion of any regularly laid and open city street by resolution or in any other manner than that provided in the charter. That conclusion commends itself to my judgment. Some of the most important streets of the city intersect these parkways, and have been maintained there for years. If the park commissioners can close these two avenues, I do not see why they may not do so as to all of them. While the park commissioners have the control and may regulate the use of intersecting streets, where they cross the parkways, it does not seem reasonable, that after having consented, as was done in this case, they may summarily and at will discontinue and terminate their existence as public thoroughfares across the parkway. It seems to me that the purpose of the amendment of 1891 was to permit streets to be laid across the park approaches with the consent of the park commissioners. It is also to be observed, in this connection, that this permission does not extend to the parks or park lands. It is carefully limited to park approaches.
The point is also made by respondents’ counsel that the streets have been closed at these intersections so long as to constitute an abandonment. I do not think it can be so held, even if the six-year statute applies.
Neither do I think the point well taken that the relator is. not entitled to the writ because of laches. By their demurrer the defendants concede the facts as stated in the writ, and I think we would not be warranted in sustaining the demurrer for that reason.
The interlocutory judgment sustaining the demurrer should therefore be reversed, with costs, with leave to the defendants to plead over upon the usual terms. All concur, except WILLIAMS, J., who dissents.