In re Opening Bay Twenty-Third-Third Street

There is involved in this application but one question, whether by the present charter, the city of Brooklyn is bound to pay, either primarily or ultimately, awards for lands taken for street openings. If the city is not liable for such awards, then, undoubtedly, the charter provisions as to street openings are unconstitutional and void. For the landowner cannot be relegated to the- assessment district as-the sole source of payment of his award. (Sage v. City of Brooklyn, 89 N. Y. 189 ; Mitchell v. The Village of White Plains, 138-id. 627 ; affd., 62 Hun, 231 .)

The Sage case decided that under the charter, as it stood jirior to-1873, the city was liable for such awards. The liability was placed on the provisions of section 16, title 4 of the charter of 1854 (Chap. 354): “ The city comptroller shall pay to the persons Sr to the - attorneys or legal representatives of such persons to whom damages-may have been awarded in such report, the amount of such damages without-any deduction therefrom by way of fee or commission.” In 1873 this provision was amended so as to read: “ The comptroller shall pay to the persons * * * to whom damage may-have been awarded in such report, the amount of such damages, with interest at the rate of seven per centum per annum from a day thirty days subsequent to the day of confirmation of the respective: assessments, pro rata, as moneys on account of such assessments.

It is this amendment that gives ground for the present controversy. It is insisted by the counsel for the landowner that though the duty imposed on the comptroller to pay. was, under the charter ■of 1854, absolute, it. is since the amendment of 1873 only qualified, being limited to the receipt from assessments as the source'of such payment. If the present section were an original one, with no history, this argument would be cogent, if not controlling. But in the light of previous legislation, and the custom which had prevailed in the city as to the payment of awards, we think it was not the intention of the Legislature by the amendment to affect the city’s responsibility. Prior to the decision" in the Sage ease, the liability ■of the city to secure the payment of awards was considered a question of very grave doubt. McCullough v. The Mayor ( 23 Wend. 458 ) was regarded as an authority against such liability. It had been the practice in the comptroller’s office to pay the landowners who first filed claims fór their awards in that office the amount of their awards from the moneys received from the assessment. Thus, payment to the landowners who filed their claims later was.deferred, and in some cases altogether denied. It was to correct this practice, and not to affect the question of the city’s liability or non-liability for payment, that the statutory amendment was enacted. 'This is clearly pointed out by Jud'ge Eakl in his dissenting opinion in the Sage case, and is well known to all who are conversant with the municipal history of the city of that time. It is a cardinal rule that a statute should be so. construed as to be constitutional instead of unconstitutional, if its terms permit of that result. To hold the ■amendment of 1873 as relieving the city from ultimate responsibility for awards to landowners, would render invalid all street .■openings which have been-had since its enactment, and deny the ■city the power to make such improvements without further legislation. Certainly this is a result to be avoided, and we think that the amendment .of 1873'should not be so construed as to effect that result, when it may be said to be a matter of common knowledge within the city that the amendment was enacted for no such purpose. We think that full effect can be given to the amendment of 1873 by holding, as suggested. by the learned corporation counsel, that

The motion should be denied, with ten dollars costs and disbursements.

All concurred.

Motions denied, with ten dollars costs and disbursements.