App. Div.] First Department, February, 1906. * * * salary, cannot be required to pay for the same services to an officer who did not perform them. The city of New York was required by law to pay for fifteen inspectors of police a salary of $3,500 per year each. (Charter, § 276, as amd. supra; Id. § 299.) The appointment of these inspectors was vested by law in the police commissioner. (Id. § 283.) Their salaries were required to be paid by the chamberlain on warrants drawn by the comptroller and countersigned by the mayor. (Id. §§ 149, 195, 151, subd. 5.) Fifteen inspectors of police were in office performing the duties of their office, appointed by the appointing officer and certified to by the civil service commissioners as the proper persons to whom the city should pay for the services rendered. for the services rendered. Under the provisions of section 19 of the Civil Service Law, the comptroller was forbidden "to draw, sign or issue, or authorize the drawing, signing or issuing of any warrant on the" chamberlain "for the payment of" and the chamberlain was forbidden "to pay any salary or compensation to any officer, clerk or other person in the classified service of such city * * * unless an estimate, payroll or account for such salary or compensation, containing the names of the persons to be paid, shall bear the certificate of the * * municipal civil service commission of such city, that the persons named in such estimate, payroll or account have been appointed or employed or promoted in pursuance of law and of the rules made in pursuance of law." As the principle is established that the city should not be again compelled to pay for the services that had been paid for to the one who actually performed them, in place of the de jure officer who was entitled to perform them, it seems to me that the payment to the officer whose appointment was valid on its face and who performed the services was a bar to the maintenance of an action by the officer who performed no services, but who was subsequently adjudged entitled to the office. The fact that the plaintiff cannot make up his mind as to which of the inspectors appointed on the 23d day of June, 1903, was appointed in his place does not prevent the city from proving that the salary was paid to the officer who was appointed in the place of the plaintiff for the services that the plaintiff was required by law to perform if he had been so allowed. It certainly would not have been an answer to this defense to prove that the de facto officer who performed the services and received the salary was insolvent and * First Department, February, 1906. [Vol. 111. unable to respond to a judgment of the de jure officer who seeks to recover the salary. If it appeared that plaintiff will be unable to recover any salary for this period during which he performed no services as a police officer it would be no answer to the position taken by the city that it has actually paid for the services for which the plaintiff now seeks to recover. The comptroller, mayor and chamberlain acted as they had a right to act upon the payroll certified to by the municipal civil service commissioners that the three inspectors appointed on the 23d day of June, 1903, had been appointed in pursuance of law and of the rules made in pursuance of law, as provided for by section 19 of the Civil Service Law (Laws of 1899, chap. 370). And having paid the salaries to the persons thus designated as having been duly appointed as provided by law, the city is not liable to any person because it subsequently appears that the person who had not performed the services had been improperly removed, and the appointment of the de facto officer who had performed the services and received the salary was unauthorized. It follows, therefore, that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. O'BRIEN, P. J., LAUGHLIN and CLARKE, JJ., concurred; HOUGHTON, J., dissented. Judgment reversed, new trial ordered, costs to appellant to abide event. EMILY R. CALDWELL and FRANK HARDY, Respondents, v. THE NEW YORK AND HARLEM RAILROAD COMPANY and THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellants. First Department, February 9, 1906. Municipal corporations - fee of Fourth avenue in city of New York belongs to city - compensation for depreciation in value of abutting property by erection of railroad viaduct on said avenue. Whatever title to the surface of Fourth avenue, between Thirty-eighth and One Hundred and Thirty-fifth streets in the city of New York, may have been acquired before 1850 by the New York and Harlem Railroad Company, it was divested of that title when the city took the fee in said avenue between the streets aforesaid on condemnation proceedings in 1850. App. Div.] First Department, February, 1906. Hence, a property owner on said avenue is entitled to compensation for interference with light and air and depreciation in value of said property caused by the erection of a viaduct by said railroad and its lessee on said avenue, as required of said railroad by the Laws of 1892, chapter 339. Award of $6,200 damages sustained. REARGUMENT of an appeal by the defendants, The New York a Harlem Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of July, 1901, upon the decision of the court rendered after a trial at the New York Special Term. In June, 1903, a decision was rendered in this and four similar cases reversing the judgments and ordering new trials (84 App. Div. 637). A reargument of this case was ordered in June, 1905 (105 id. 641). Alexander S. Lyman, for the appellants. Edmund L. Mooney, for the respondents. This action was brought to restrain the defendants from maintaining and operating a railroad upon a structure in Fourth avenue opposite the plaintiffs' premises on the southwest corner of One Hundred and Twenty-ninth street and Fourth avenue, in the city of New York. Prior to the year 1828 one Charles Henry Hall was the owner of the premises in question, and on the 16th day of September, 1828, Hall conveyed the premises to one Russel by a conveyance which would include the fee of the easterly half of Fourth avenue in front of the plaintiffs' premises. Subsequently, on the 1st day of May, 1834, Russel reconveyed this property to said Charles Henry Hall by the same description by which he had received title to the property. On the 10th day of October, 1839, Charles Henry Hall conveyed the premises to David P. Hall by a description which would convey the fee of the westerly half of the said avenue. By a resolution of the common council, approved by the mayor February 1, 1832, the New York and Harlem Railroad Company was permitted to construct and lay down, in pursuance of its act of incorporation (Laws of 1831, chap. 263), a double or single-track rail First Department, February, 1906. [Vol. 111. road along Fourth avenue from Twenty-third street to the IIarlem river, provided that the width of such double or single track should not exceed twenty-four feet, with various conditions and provisos, which ordinance was accepted by the railroad company, who, by special agreement, promised, covenanted and agreed to and with the city of New York, "to stand, abide by and perform all the conditions and requirements in the said ordinance contained." Under this permit the railroad company constructed its road, and two tracks upon the surface of the ground were completed within the twenty-four-feet strip in the year 1837. By chapter 274 of the Laws of 1837 Fourth avenue was widened to a width of one hundred and forty feet. By deed dated January 18, 1832, recorded in the office of the register of the county of New York on August 18, 1835, Charles Henry Hall, although not then the owner of the fee of Fourth avenue in front of plaintiffs' property, executed a deed which conveyed to the Harlem Railroad Company a certain strip or parcel of land, being one of the avenues laid out on the map of the city of New York as Fourth avenue, and as included within a space of twenty-four feet wide running through the center of said avenue, between One Hundred and Twenty-seventh and One Hundred and Thirty-fifth streets. This strip of land is bounded northerly by the channel of the Harlem river, southerly by land belonging lately to the heirs of John F. Sickels, deceased, and east and west by lines drawn parallel to the center of Fourth avenue and each side thereof, a distance of twelve feet therefrom, with the power of sloping their embankments or excavations so much further than the lines of said premises therein before granted as may be necessary to support their work, not, however, extending beyond the width of the avenue. No consideration was expressed and there is no evidence that the Harlem Railroad Company paid Hall any consideration. This conveyance of Hall to the Harlem Railroad Company did not convey this property, as, at the time of the conveyance, the westerly half of Fourth avenue, in front of plaintiffs' property, was owned by Russel, the deed conveying it to him having been duly recorded. It further appeared that in the year 1850 proceedings were taken by the mayor, aldermen and commonalty of the city of New York to open Fourth avenue as a street one hundred and forty feet wide from Thirty-eighth street to the northerly side of One Hundred and Thirty-fifth street, and that App. Div.] First Department, February, 1906. by such proceedings the city acquired title to this land one hundred and forty feet wide for the purpose of Fourth avenue. Whatever interest in this strip of twenty-four feet had been acquired by the railroad company from Hall was, under this proceeding, acquired by the city of New York. The railroad company, however, continued to use the surface of the street for its road with a double track. Under an act of the Legislature (Laws of 1872, chap. 702) the railroad company was required to construct its railroad either above or below grade as therein prescribed, and it was authorized to use four tracks instead of two, and to take such additional space in Fourth avenue as might be needed for that purpose. Under this statute the railroad company excavated a cut in front of these premises about fifteen feet in depth and fifty feet in width at the bottom, with a slope of wall which increased the width of the cut to about sixty-one feet eight inches at the top. The distance from the side of the cut to the building line was about forty feet, of which about twenty-five feet were used as a highway and about fifteen feet for a sidewalk. This cut was crossed at One Hundred and Twenty-ninth and One Hundred and Thirtieth streets by bridges upon the surface of the streets, and the New York and Harlem Railroad Company and its lessees ran trains in this cut without interruption down to February 16, 1897. By chapter 339 of the Laws of 1892 the grade of said railroad was authorized and required to be changed, and the tracks were required to be carried past the premises on a viaduct of iron or steel, or of both, so that all streets from and inclusive of One Hundred and Twelfth street to the Harlem river should be passed over with a clear height of not less than fourteen feet above the surface of the pavement. This viaduct was completed and trains ran on it in the year 1897, since which time it has been in the exclusive possession of the New York Central and Hudson River Railroad Company as lessee of the New York and Harlem Railroad Company, and upon this viaduct the trains of this company are now operated. It seems quite unnecessary to refer to the various cases decided by the Court of Appeals prior to the reversal by the Supreme Court of the United States of the cases of Muhlker v. Harlem Railroad Co. (197 U. S. 544) and Birrell v. New York & Harlem R. R. Co. (198 id. 390), for in the case of Sander v. State of New York (182 N. Y. 400) the Court of Appeals, referring to these various cases, |