Majority
p. 833In the Matter of the Application of The City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired for the Same Purpose in Fee, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening and Extending Withers Street, from Kingsland Avenue to Vandervoort Avenue, in the Borough of Brooklyn, City of New York. Vito F. Lanza and Bullion Realty Co., Appellants; The City of New York, Frank Hess, as Executor, etc., of Louis Hess, Deceased, and Raffaele Carrano, Respondents.
Street opening proceeding instituted pursuant to section 970 et seq. of the Greater New York Charter. Order, on reargument, denying motion of
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two property owners, Bullion Realty Co. and Vito F. Lanza, to dismiss the proceeding for lack of jurisdiction and failure to prosecute, affirmed, with ten dollars costs and disbursements. The property owners have not brought themselves within section 993 of the charter, which provides when a property owner may obtain a discontinuance of a street opening proceeding. The court is not without jurisdiction so long as the order of condemnation entered July 11, 1927, stands undisturbed. The possibility that a tentative decree containing the awards for the property taken may also contain an illegal assessment for benefit does not affect jurisdiction. Separate decrees for awards and assessments respectively may be entered under section 1003 on application of the board of estimate and apportionment. If no such application be made, the court, under section 1000-c, may enter a decree, the validity of which, so far as the awards are concerned, will not be affected by invalid provisions respecting assessments because the exercise of the sovereign power of eminent domain, which involves a pledge of the city’s credit, is to be considered without reference to the validity or invalidity of the contemporaneous exercise of the sovereign power of taxation through the medium of an assessment for benefit. (People v. Adirondack Railway Co., 160 N. Y. 225 , 236; Dyker Meadow Land & Imp. Co. v. Cook, 3 App. Div. 164 , 168; affd., 159 N. Y. 6 ; Genet v. City of Brooklyn, 99 id. 296, 307; Chapman v. Gates, 54 id. 132, 143; Matter of City of Syracuse, 224 id. 201, 207.) Young, Carswell, Davis, Adel and Taylor, JJ., concur.
Cases cited
- People v. Adirondack Railway Co. 160 N. Y. 225 at 236 p. 834
- Dyker Meadow Land & Improvement Co. v. Cook 3 App. Div. 164 at 168 p. 834
- Dyker Meadow Land & Improvement Co. v. Cook 159 N. Y. 6 p. 834