I concur in the views expressed by Mr. Justice Ingraham in his opinion herein, and I am also of the opinion that his. construction of the acts in question has received the sanction both of this court and of the Coart of Appeals. (Matter of Mayor, 28 App. Div. 143; affd., 157 N. Y. 409.)
The record in that case, which was before this court on the appeal, discloses that the map then in question related to Gerard avenue, between One Hundred and Sixty-eighth street and One Hundred and Sixty-ninth street, as laid down on section 9 of the final plans of the twenty-third and twenty-fourth wards, filed November 2,1895, In construing chapter 1006 of the Laws of 1895 as to the effect of the ■filing of the map, Mr. Justice Patterson, writing the opinion of the court, says (p. 146) “ that much of Gerard avenue became-closed by the filing of the map, and thus the respondents’ easements of light, air and access to their Gerard avenue frontage were in legal effect taken away.” An appeal from this decision was permitted, and certain questions were certified for review, the first of which was as follows: “First. Was the effect of Chapter 1006 of the Laws of 1895, taken in connection with the action taken by the commissioner of street improvements of the twenty-third and *128twenty-fourth wards of' tire city of New York and the board of street opening and improvement of said city, to discontinue and close that part of Gerard avenue in the twenty-third ward of the city of New York, abutting on the respondents’ lands between One • Hundred and Sixty-eighth and One Hundred and Sixty-ninth streets, * * * ' so as to extinguish the easements of the respond-' ents therein % ”
This question presents the identical subject now before us for' determination, except as to the particular street. The map now before us is a part of the same final plans of the twenty-third and twenty-fourth wards, to wit: “ Extract from Section 14 of the Final Maps of the 23d and 24th wards. Adopted Juné IT, 1895. Filed December ITth, 1895.” It is shown by the record in Matter of Ma/yor (supra) that the section there in question was also adopted June IT, 1895, but was filed November 2, 1895.
The Court of Appeals did not answer the question certified to it categorically, but said: “We think that the provisions of chapter 1006 of the Laws of 1895 are within the constitutional powers of the Legislature, and that the order in this case should be affirmed. * * # "^ye have not thought" it necessary to enter upon a discussion of this question, for the reason that the very able opinion written below, in which we fully concur, covers all the points involved.”
These cases definitely determine that the effect of the filing of the maps in question was to close and discontinue the old street known as Morris avenue, and to take away the appellants’ easements of light, air and access therein and thereto as effectually as in the case of Gerard avenue.
I am of the opinion, also, that chapter T12 of the Laws of 1896, entitled “ An act in relation to the final maps, plans and profiles of the twenty-third and twenty-fourth wards of the city of New York,” has the effect to remove any objection to the maps and plans in question which might have existed by reason of the failure of the authorities to follow technically and exactly the requirements of the statutes providing therefor, and ratified and confirmed the same in all respects. It includes in its provisions, in express terms, sections 1 to 28, inclusive, of the final maps and profiles of the twenty-third and twenty-fourth wards of the city of New York, and while *129the language of the act is confined to the opening, acquiring, laying out and establishing streets, it in terms provides that “ every provision of law in relation to the laying out and establishment of said streets, avenues, roads, public squares, parks and places, * * * and in relation to the making and filing of the final maps and profiles thereof, shall hereafter be deemed to have been complied with.” As there is no limitation or restriction in the act applicable to this ■subject and as its evident scope was the whole scheme embodied in the maps, plans and profiles adopted fpr said wards and filed for the purpose of perfecting and establishing the system of new streets and the discontinuance of old ones, it seems to me that it clearly removes any doubt as to the purpose and effect of the act.
Rumsey and Ingraham, JJ., concurred.
The following is the opinion of the court below, referred to by Van Brunt, P. J.:
Bischoff, Jr., J.:The city has instituted proceedings to acquire title to the hereinafter-named streets, and commissioners of estimate and assessment have been appointed. The petitioner Dowd is the owner of the premises fronting on Ilingsbridge road over which the said premises enjoyed the usual street easements of light, air and access. Kings-bridge road is shown as discontinued and closed on the final maps of the twenty-third and twenty-fourth wards. Grote street is one of the streets laid out on the final maps bounding the block within which this part of Bhngsbridge road is situated. The petitioner Sattler is the owner of premises fronting on Monroe avenue, between East One Hundred and Eighty-first street and East One Hundred and Eighty-second street, over ■ which the said premises enjoyed the usual street easements of light, air and access. ■ Monroe avenue is shown as discontinued and closed on the final maps of the twenty-third and twenty-fourth wards. Morris avenue is one of the streets laid out on the final maps bounding the block within which this part of Monroe avenue is situated. The petitioner Brass is the owner of the premises situated on Eighth avenue, southerly from "Walnut street, over which the said premises enjoyed the usual street easements of light, air and access. Eighth avenue is shown *130as discontinued and closed on the final maps of the 'twenty-third and twenty-fourth wards. Walton avenue is one of the streets laid out on the final maps bounding the block within which this part of Eighth avenue is situated. These motions are for orders directing the commissioners appointed in the several proceedings to ascertain and determine the compensation which should justly be made for the loss and damage sustained by the.several petitioners. They maintain that such easements of light, air and access as their premises formerly enjoyed over the streets on which they fronted have been extinguished and lost hy act of the municipality in the proposed adoption and filing of the final maps of the twenty-third and twenty-fourth wards and by force of the provisions of chapter 1006 of the Laws of 1895. Acting under section 14 of chapter 1006 of the Laws of 1895, the petitioners have applied for an order directing the commissioners of estimate and assessment, who-have already been appointed in the above proceedings, to estimate the damages which their premises have suffered by reason of the extinguishment of the easements of light, air and access appurtenant to their lots over- the streets on which they fronted, caused by the discontinuance and closing of that part of the highways on which the premises formerly abutted.
The facts alleged in the several petitions are not in substance denied, but -the granting of these motions -is resisted by the city of New York principally upon the grounds that the easements which petitioners’ lots formerly enjoyed over the highways on which they fronted have not been extinguished, either by any acts of the municipality or by virtue of chapter 1006 of the Laws- of 1895; that the demand for damages was not filed by petitioners within the time specified by chapter 1C06 of the Laws of -1895, and- that, conceding chapter 1006 of the Laws of. 1895 to apply to these streets, the easements of light, - air and access which the petitioners’ premises formerly enjoyed over the highways on which they fronted have not been extinguished, as none of the streets to which the city has acquired title to the fee have been, within -the term as used in- chapter 1006 of the - Laws of 1895, opened. It appears from the moving papers that by reason of the powers devolved on him by chapter 545 of the Laws of 1890 the commissioner of streets of - the twenty-third and twenty-fourth *131wards caused to be made and submitted to the board of street opening and improvement the sections of the final maps of. that part of the twenty:third and, twenty-fourth wards within which are situated the several petitioners’ premises; that the board of street opening and improvement on June II, 1895, in pursuance of chapter 545 of the Laws of 1890, adopted and approved these maps, and directed the commissioner of street improvements of the twenty-third and twenty-fourth wards to file three sets thereof in the offices required by law, and that on November 2, 1895, they filed in the office of the Secretary of State and in the commissioner’s office three similar sets of maps or plans of certain districts designated respectively as sections 9, 12 and 14 of the final maps of the twenty-third and twenty-fourth wards, embracing the premises in question. The streets laid out and established as the permanent streets of said district on said maps were so laid out under and in pursuance of the powers conferred on said commissioner by chapter 545 of the Laws of 1890. It appears that these maps not only show the streets which are to "be retained as the final streets of the twenty-third and twenty-fourth wards, but also the streets which are intended to be discontinued and abandoned, and among the discontinued and abandoned streets are those on which the several petitioners’ premises abut. It is because of these acts of the public authority and by force of the provisions of chapter 1006 of the Laws of 1895, which went into effect on June 12, 1895, that the petitioners herein claim the easements of light, air and access which their premises formerly enjoyed over the streets on which they fronted were extinguished and lost and for which they seek compensation. It is not claimed that any of the streets bounding the blocks within which are situated the premises in question have been thrown open for publictraffic subsequent to the passage of chapter 1006 of the Laws of 1895, although the city has acquired title to them as public streets. The first inquiry of importance is as to whether by any acts of the municipality prior to chapter 1006 of the Laws of 1895 the easements of light, air and access ’'which the several petitioners formerly enjoyed have been extinguished or lost, and which involves the inquiry whether the filing of the final maps of the twenty-third and twenty-fourth wards on November 2, 1895, extinguished these easements. There seems to be no doubt that a municipality may abandon a public *132highway and discontinue and close it so as to extinguish the rights of the public therein,, and 'yet' leave surviving the rights of easements of light, aii" and access which are appurtenant to every lot abutting a public highway without regard to the manner of the creation of the highway. This rests upon the theory that the easements of light, air and access over a highway, and which are. separate and distinct from the public right of way, survive the public abandonment of the street. (Holloway v. Southmayd, 139 N. Y. 410; Story v. New York Elevated R. R. Co., 90 id. 122; Lahr v. Metropolitan Elevated R. Co., 104 id. 269.) While it is true a municipality may abandon a public highway so as to extinguish not only the public rights but the private easements appurtenant to the lots (Matter of Mayor, 157 N. Y. 412), yet it seems questionable whether prior to chapter 1006 of the Laws of 1895, there was any act of the Legislature in force affecting the city of New York which authorized the closing of a public highway so as to extinguish the private easements appurtenant to the abutting lots. It was only the public rights which could be affected by the closing under the. prior statutes. At least such was the effect of chapter 213 of the Laws of 18Í8, and of the act of April 24,1867 (Chap. 697), the latter of which was construed in the much-criticised case of Holloway v. Southmayd (139 N. Y. 410), and which clearly held that only public rights could be extinguished thereunder. The act’in force when the final maps of the twenty-third .and twenty-fourth wards were prepared and filed, and under which the maps were approved and adopted by the board of street opening and improvement, was chapter 545 of the Laws of 1.890. This act authorized the commissioner of street improvements of the twenty-third and twentyffourth wards, with the consent and approval of the board ojf street opening and improvement, to discontinue and abandon public highways, and it would appear that such act had no greater force than that considered in Holloway v. Southmayd {supra), the action taken thereunder effecting the abandonment of the public rights alone. And, if this be true, such steps had no greater effect than to abandon the public rights in those streets, leaving surviving the rights appurtenant to the petitioners' premises over the abandoned highways, and which are sought to be compensated for herein,'.and which give rise to the consideration of the effect of ' chapter 1006 of the Laws of 1895 as touching this question. To *133sustain the theory of the petitioners herein it is necessary to hold that, after the city authorities had acted on these matters under chapter 545 of the Laws of 1890, chapter 1006 of the Laws of 1895 was self-executing to the extent that thereupon these easements which had survived in the abandoned highways became extinguished and were lost by force of the provisions of the latter statute. A careful analysis of this statute would indicate that the Legislature intended no summary method of procedure. It may be true that these easements could be extinguished by this act, and, indeed, such is an express adjudication of the matter (Matter of Mayor, 157 N. Y. 412), and the question arises whether, construed in the most favorable light to the. petitioners, it may be said that the city has availed itself of the powers granted by chapter 1006 of the Laws of 1895. The position taken by the city is that it has never authorized the discontinuance and closing of streets in the manner provided for by this act, so far as relates to the streets on which the petitioners’ premises abutted. This seems to be conceded by the petitioners, in so far as any affirmative act on the part of the city is concerned looking toward the extinguishment of the easements sought to-be recovered for herein by direct act of the city, as provided expressly by chapter 1006 of the Laws of 1895. It may be, and undoubtedly is, true, as pointed out by Mr. Justice Pattebson in Matter of Mayor (28 App. Div. 143), that the statute under consideration provides a complete scheme for closing streets and avenues in the city of New York, but it must not be overlooked that such statute does not appear to be mandatory so far as the public authorities are concerned, or in terms self-executing • but, on the contrary, seems to vest a discretion in them to avail themselves of the powers granted or not. This is clearly apparent from the language used in section 1 of the act“ The local authorities may authorize in the manner hereinafter provided the discontinuance of such streets * * * therein as they may deem to be necessary in order to more effectually secure and preserve regularity and uniformity in the general and permanent plan of streets and avenues and public places therein, or where other public necessity in the judgment of such local authorities requires the discontinuance thereof in whole or in part.” The language used in this section leaves no room for doubt as to the intention of the Legislature to vest a discretion in the local *134authorities. There is no absolute right on the part of the petitioners herein to have these easements over the former public highways extinguished and taken away, nor is there any absolute duty to be performed or right enforced by the city; hence, it could scarcely be argued that “ may ” should be construed- “ must ” as used in this section. Besides, the statute provides for the exercise of the judgment of the local authorities as to the time or necessity for the discontinuance of streets. If the Legislature had intended the act in this respect to be self-executing, then the' language of discretion vested in the. authorities would be inconsistent therewith, and it is evident that the easements surviving the public abandonment of the public highways were not to be extinguished unless the proper authorities determined to act, and unless they proceeded in the manner authorized by the act. Hence, I believe the city is correct in its contention that if it desires to extinguish such easements it lias power under chapter-1006 of the Laws of 1895 so to do, but that it first must-pass judgment on the necessity for so doing, and after such judgment has been reached must proceed in the manner provided for by. the act,- and file the maps required by section 2. After these maps have been filed the easements are extinguished, if the street has not been opened, and the property owner damaged thereby has six years after that time to file his claim if the street has been abandoned by the final maps, or has two years to file his claim if the street has been abandoned by a prior or former layout. This construction I believe to be in harmony with the general purview of the statute, and is that which would best protect the rights of parties interested. It is not: contended that such a map as is provided for under section 2 of chapter 1006 of the Laws of 1895 has been expressly prepared and filed in reference to the streets on which the petitioners’ premises abut, it appearing that the only map that has been filed, and on which the petitioners base their claim that these private easements have been extinguished, is the map filed as aforesaid on the 2d day of November, 1895, and adopted June 17, 1895, by the board of street opening and improvement under the prior statute. This map does not meet the requirements of section 2, chapter 1006 of the Laws of 1895. The new streets or contemplated layout are indi- . .cated in black lines and yellow color thereon. The streets intended to be discontinued are shown in black lines and gray color. The *135various streets on which the petitioners’ premises abutted are shown on this map in black lines and gray color. This map is not a map on which there is designated only the streets which, they may determine to lay out, omitting therefrom all such former streets which they may determine to discontinue ■ or close. The discontinued streets are not omitted from this map. It shows, not only the streets which the public authorities determine to lay out, but it also shows the streets which the public authorities have determined to discontinue and close. It is true that the streets they determine to discontinue and close are streets shown on this map as discontinued streets, but they are, nevertheless, streets shown on and they are not ■omitted from this map. The question of what constitutes a street shown on a map, as well as what constitutes a street omitted from the map, has been passed upon in the Court of Appeals in Matter of Barclay (91 N. Y. 430), and undér this authority these streets must be considered as streets shown upon the final maps of the twenty-third and twenty-fourth wards. Other streets are also shown upon this same map in the same manner, indicating the intention of the public authorities at some time to discontinue ■and close them, and for aught we know to reserve the right, with the purpose in view of appropriating them for other purposes. It is, therefore, not a map which fulfills the requirements of section 2 of chapter 1006 of thé Laws of 1895, requiring “ the local authorities authorized by law to lay out * * * streets, avenues and roads * * * and to make and file a map or plan showing the streets, avenues and roads so laid out * * * shall upon any map or plan so made and filed by them designate only the streets * * * which they may determine to so lay out * * * as the permanent streets, avenues and roads in and for such city,. * * omitting therefrom all such former streets * * * which they may determine to discontinue or close. * * * Upon ■and after the filing of such map, the streets,, avenues and roads shown thereon shall be the only lawful streets * * * in that section of such city * * * and all other former streets * * * theretofore laid out, dedicated or established not shown thereon and which are not then actually open or in public use shall, from and after the filing of such map or plan, cease to be or remain, for any purpose whatever, a street. * * * But in all cases where *136any such street * * * is, at the time of the filing of such permanent map, * * actually open and in public use, such parts- or portions thereof as are included within the boundaries of any square or plot of ground made by the intersection .of any streets,, avenues or roads laid out by -the local authorities upon the permanent map or plan of said city, * ■ * * shall, ever after any one-of the streets, avenues or roads' bounding such square or plot shall be opened, cease to be or remain- for any purpose whatever a street * * * ■ and the owner in fee of the land or soil within the boundaries'thereof • may thereupon enclose, use and occupy the same as-fully as' if the same had not been laid out, .*■ * * . established" Or used.” From this it is clear that, until the map required by this section is filed, there is no "authority for the owner of the fee of the land or soil to occupy the same as if it had not been a street. Thus,, the time specified in this section when the occupancy of the soil of the abandoned street is authorized is further evidence that the act-does not of itself extinguish the easements that survive a public-abandonment merely of a highway accruing under authority other-than of chapter 1006 of the Laws of 1895, nor does anything else in the statute change such interpretation. This conclusion renders it. unnecessary to pass upon -the further’ points raised by the city in opposition to the motions, which must be denied. • Settle order on notice.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.