If the resolution of the Board of Estimate, approving the acquisition in accordance with the provisions of section 706 of the Charter of the City of New York (effective January 1, 1938) by purchase, condemnation or otherwise of the property therein described for the improvement of the water front in the borough of Manhattan, is to be construed, as the city maintains, as authorizing a proceeding only for the purpose of acquiring title for a marginal street for the improvement of the water front, then any possible damages suffered by the plaintiff would arise not from the taking of the property itself but from the use to which the street might be put, and *408 only upon such use becoming actual or threatened might the plaintiff have the rights which he now asserts. On the other hand, if the resolution is to be construed as providing for the condemnation of greater rights than for a marginal street for the improvement of the water front, the plaintiff can assert its claim for damages in the condemnation proceeding itself.

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgment affirmed.