In the Matter of the Application of The City of New York Relative to Acquiring Title, etc., to the Lands and Premises Required for the Construction of a Bridge over Newtown Creek, from Vernon Avenue, in the Borough of Queens, to Manhattan Avenue, in the Borough of Brooklyn. In the Matter of Lands Situated in the Borough of Queens. John L. Klages, Appellant; Alfred L. New, as Executor, etc., of Catharine A. Smith, Deceased, Respondent

In the Matter of the Application of The City of New York Relative to Acquiring Title, etc., to the Lands and Premises Required for the Construction of a Bridge over Newtown Creek, from Vernon Avenue, in the Borough of Queens, to Manhattan Avenue, in the Borough of Brooklyn. In the Matter of Lands Situated in the Borough of Queens. John L. Klages, Appellant; Alfred L. New, as Executor, etc., of Catharine A. Smith, Deceased, Respondent. Second Department, October 16, 1908. Eminent domain — condemnation of fee in street for bridge approach — right to compensation as between grantor and grantee. As the use of a street by a city for an elevated bridge approach is legal, the.compensation for taking the fee should be paid to the one who owned the same when the-structure was built and not to his grantee who subsequently took title while the proceeding was pending. Under such circumstances it is presumed that the price paid by the grantee was based on the value of the land in its damaged condition. - Appeal by John L. Klages, a property owner, from an order of the Supreme .Court, made at the Queens .County Special Term and entered in the office of the clerk of the county of Queens on the 29th day of January, 1907, confirming the supplemental report of commissioners of estimate and appraisal herein, in so .far as said order affects the parcel of land known as Damage Parcel No. 8. The proceeding was to acquire title to the fee in a street to be used as an approach to a bridge. The approach was an elevated structure in the street. William B. Donihee [Arthur A. Brown with him on the brief], .for the appellant. Joseph A. Flannery, for the respondent.. [MAJORITY — Gaynor, J.:] Gaynor, J.: The appellant was given an award as lessee for damages by the impairment of the appurtenant easements of light, air and access,but he claims that he should have been given such damages as owner ot' the fee also, although the premises were conveyed to him during the pendency of the proceeding, and after the structure was built in the street and the damage done. Instead, the award for such damage was made to his grantor, who owned the fee when the proceeding was begun and when the damage was done. This was correct. The use of the street by the structure was legal, and the damage done by it was to the fee owner, and was not included in his conveyance to the appellant. ' It was a chose in action belonging to him. The case is not like the elevated railroad cases, where the structure was illegal, and the presumption was that it was not to continue. In such a case the grantee is entitled to the future damage by the impairment of the easements. The presumption in a case like the present is that the price paid by the grantee was based on the land in its damaged condition and did not include the damages recoverable therefor (Matter of Grade Crossing Com'rs, 64 App. Div. 71; 169 N. Y. 605). The order should be affirmed. Jenks, Hooker, Rich and Miller, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.