In re The Mayor of New York — 52 A.D. 478

Majority

p. 478

In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, wherever the Same has not been Heretofore Acquired, to East One Hundred and Sixty-first Street (Although not yet Named by Proper Authority) from Elton Avenue to Mott Avenue, in the Twenty-third Ward of the City of New York, as the Same has been Heretofore Laid Out and Designated as a First-class Street or Road. The New York Central and Hudson River Railroad Company, Appellant; The City of New York, Respondent.

Headnote

Street opening proceeding—■ commissioners may be appointed to estimate the damages of consenting landowners, although another landowner denies the necessity for-taking its land and also the power to acquire it — the objecting landowner cannot appeal from the order appointing the commissioners.

In a, street opening proceeding instituted by the city of New York, commissioners of estimate and assessment may be. appointed to determine and assess the damages suffered by the consenting landowners, notwithstanding the existence, ■ undetermined, of issues raised by an objecting landowner as to the necessity for taking its land and as to the power of the city to acquire the same by proceedings in invitum.

The objecting landowner is not entitled to appeal from the order appointing the ■ commissioners, where such -order reserves for trial all the issues tendered by it, and does not-require or authorize the commissioners to do-any act in connection With such landowner’s property.

Appeal by The New York Central and Hudson River Railroad Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th .day df April, 1900, granting the motion of the ■petitioner. The Mayor, Aldermen and Commonalty of the City of New York, for an order for the appointment of commissioners of estimate and assessment in respect to all the lands and parcels of land described in the petitition, except the parcel designated “ B ” in said ■ petition, except from the following part of said order: “ Ordered, that a hearing upon the issues raised, by the answer of the New York Central and Hudson River Railroad Company herein, be had before this court upon the 7 day of May, 1900, or upon such days as the same may be hereafter adjourned to, by consent or by order of this court, and that hereafter the city of New York or

p. 479

the New York Central and Hudson River Railroad Company, or George W. Murray, may make any motion in this proceeding, upon the usual notice, as they may be advised.”

Ira A. Place, for the appellant.

George L. Sterling, for the respondent.

The railroad company appeals from that part of the order only which appoints commissioners of estimate and assessment upon the property of consenting landowners. This proceeding was instituted in 1898 for the purpose of acquiring title to lands necessary to lay out East One Hundred and Sixty-first street, from Elton avenue to Mott avenue. One of the parcels of land affected by the proceedings was owned by the appellant railroad company. It filed its answer, putting in issue the necessity of taking the parcel of land owned by it for the contemplated improvement, and putting in issue other material averments, and sought by an affirmative defense to deny power in the municipality to acquire, title to its lands by proceedings in inmtum. After this answer was served, and before a determination had been had upon the issues tendered by it, the city made an application for the appointment of commissioners of estimate and assessment. This order having been granted, an appeal .was taken to this court by the railroad company where the order was reversed, the court holding that, the questions raised by the answer should be decided before the appointment of commissioners of estimate and assessment to determine and assess the damages. Subsequently all of the landowners affected by the proceeding, excepting the appellant railroad, consented to the appointment of commissioners, and upon application to the court by the corporation counsel on February 26, 1900, the court appointed, against the objection of the railroad company, commissioners to determine and assess damages upon the property owners consenting thereto, and in such order it was provided that a trial should be had of the issues raised by the railroad company. before the court upon a day named in the order. '

As to the railroad company’s lands, therefore, no commissioners were appointed. It is insisted that this order is in violation of the

p. 480

'decision of this cburt upon the former appeal: (Matter of the Mayor, 22 App. Div. 124 .) I do not so understand that decision. All that was decided therein affecting such question was that the objecting owner has the right to have the issue which was tendered determined before the appointment of the commissioners of estimate and assessment. The question was not presented to' the court nor was it considered that thé commissioners, as to consenting property owners affected by the proceeding, could not be appointed, and no valid reason is suggested in the present case wliy such a course could not and should hot be pursued. It is possible that a case may arise in which the contemplated improvement is of such a character that it could hot be carried out unless the city obtained the property of the objecting landowner, or wherein such landowner’s property was absolutely - essential to the execution of the contemplated 'improvement. This, however, relates to matters of practical administration rather than to legal rights.

■ By Section 985 of the charter (Laws of 1897, chap. 378) it is contemplated that commissioners may be appointed for successive parcels or sections of land and may make separate reports in respect thereto, the only exception being that the final and last separate report shall contain tile assessment for benefit. We can see no valid reason, therefore, why, as applied to the facts in this proceeding, it was not only proper but probably advisable that the commissioners should be-appointed as to the uncontesting landowners.

It is also apparent that the appellant has no standing in court upon this appeal as it is in no respect aggrieved by the order which has- been made. It is only a person who is aggrieved by an order that, is given a right to appeal. (Code Civ. Proc. § 1294 Hyatt v. Dusenbury, 1 Silv. N. Y. Rep. 475.; and note Cuyler v. Moreland, 6 Paige, 273.)

Every right of which the appellant is possessed is protected by the order which has b'een made. All the issues raised by its answer have been expressly reserved for trial and the commissioners appointed are not required or authorized to do any act in- connectian with the-.property which it owns. In no view can the appellant be prejudiced by any act of the commissioners. If the entire scheme fails the appellant will not suffer as its land is not- affected, and cannot be, by any act of the commissioners.

p. 481

It is suggested that the appellant is liable to an assessment for the improvement, but this is speculative and may or may not occur. Assuming that it be assessed for the- improvement, none of its rights to object or contest such assessment will be invaded, nor does this ■order pretend to cut off or in anywise affect its right so to do. As it has no interest in the proceeding it cannot be legally affected and, therefore, is without ground to make legal complaint.

It follows from these views that the appeal should be dismissed, with ten dollars costs and disbursements.

Van Brunt, P. J., Rumset and Ingraham, JR, concurred.

Appeal dismissed, with ten dollars costs and disbursements.