Corporation of New York v. Mapes — 6 Johns. Ch. 46

Majority

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The Corporation of the City of New-York against Mapes and Schermerhorn.

Headnote

This Court does not interfere by injunction, unless the party applying for the remedy has a vested right, legal or equitable, which may be greatly, if not irreparably affected by the acts sought to be restrained.

Where no commissioners of estimate and assessment have been appointed under the act relative to opening, altering, &c. the streets in the city of New-York, (sess. 86. oh. 86. s. 178. 2 N. R. L. 842. 408.) no rights become vested, either in the corporation of the city, or in the owners of property affected by the proposed improvements, in consequence of the proceedings under the act, so as to prevent the corporation, on the one hand, from abandoning their proposed plan of improvement, or the owners of the property so affected, on the other, from using and improving it, in any manner they'may think fit; an injunction will not, therefore, be granted, at the instance of the corporation, to restrain the individuals owning property to be affected by the proposed improvement, from erecting buildings on their land, or using it at their discretion.

And, it seems, that the corporation, after proceedings have com- , menced to carry into effect the plan of improvement, may, at any time before the commissioners of estimate,and assessment have reported, and their report has been confirmed by the Supreme Court, pursuant to the act, abandon the plan, and discontinue the proceedings altogether.

BILL for an injunction, stating, that the plaintiffs deeming it proper to open Beekman-street, in the city of New-York, from Pearl-street to South-street, by taking the lands, and removing the buildings therein particularly described, did, in May term, 1816, apply to the Supreme Court for commissioners, in pursuance of the provisions of the statute, entitled, “ an act to reduce several laws, relating particularly to the city of New-York, into one act,” and the Court appointed three commissioners of estimate and assessment to do the duties in such case pre

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scribed. That the commissioners assumed the trust, and proceeded to execute it, and in January term, 1819, made a report, which was referred to three other commissioners to reconsider the subject, who have never reported. That in January term of the Supreme Court, in 1821, the plaintiffs were, tinder the statute, invested with the title to a block of ground, and dock, on which they have since erected Fulton Market. That the title to the ground and dock, and the erection of the market, cost the plaintiffs upwards of 190,000 dollars. That the plaintiffs have repeatedly been requested to alter the line of Beekman-street, and make it less crooked. That Beekman-street, as contemplated to be improved, would not be broad enough at the easterly end of the said market, or as public accommodation would require, it being but 62 feet in front of the easterly end of the market. That a memorial of persons owning property on Beekman-street, in favour of altering the line of that street, was presented to the plaintiffs, and referred to a committee, who heard all the parties concerned, and reported, on the 27th of November last, against the plan before reported; and they adopted, as best, a middle line, which would give a street of 87 feet along the east front of the market. That the common council deemed this new plan as judicious, and the best, and adopted it. That the plaintiffs, accordingly, petitioned the Supreme Court, the last January term, to discontinue the proceedings under the old plan, and for the appointment of commissioners of assessment and estimate under the new plan. That the motion was opposed by persons hostile to the new plan, and especially by the two defendants, who are proprietors of ground required to be taken upon the new plan. That an estimate was presented in opposition to the plaintiffs, making the expense 50,550 dollars greater on the new plan, and the defendant, M., made an affidavit, stating, that after the appointment of commissioners on the first plan, he made a purchase of a moiety of a lot on the

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north side of the street, so to be laid out, being 25 fees wide, and 150 feet long on the street, (fronting the north end of the new market.) That he made the purchase in consequence of the extension of the street, and the erection of the market, which the plaintiffs had then determined to make on the old plan, and had taken measures of public notoriety to execute it, and he did it on the faith of that plan. That the new plan proposed would take away the whole of his lot and throw it into street. That the former plan is far preferable, and less expensive. The plaintiffs aver, that the estimate of the additional expense of the new plan is incorrect. That the defendant, M., was a member of the common council when the first plan was proposed, and contracted for the purchase of his lot in anticipation of the improvements, and advocated them. That the counsel for the plaintiffs moved, that the application be postponed to the May term, as they were taken by surprise, by the affidavit of defendant, M., and believed that they could show, that all the injury to defendant, M., would fee to defeat his speculation. That a rule of Court was accordingly entered on January 26th, 1822, postponing the application to May term next, without prejudice to the rights of any party, and that the plaintiffs be then at liberty to renew their application, and that either party may produce proofs, and that the commissioners of assessment stay the filing of their report. That since that rule, the defendants, knowing the same, have contracted for the erection of a row of buildings on their lot, to be completed by the first of May next, and have employed a great number of workmen, who are now actually engaged in preparing the ground and materials. That the defendants are so erecting such buildings, with a view of defeating the new plan of enlarging and extending Beekman-street, by adding the value of the buildings to the expense to be incurred by plaintiffs, if they should persevere. Prayer, for an injunction to restrain the defendants from

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•erecting the buildings, until the application to the Supreme Court shall have been decided upon, &c.

March lhth.

O. Edwards, for the plaintiffs,

moved for an injunction according to the prayer of the bill.

S. Jones, contra.

Wo vested rights have been acquired in consequence of the report of a committee of the common council, on the 27th of November last, in favour of a new line to be adopted on opening Seekman-street to the East river. All that has been done under that report, is the confirmation of it by the common council, and an application to the Supreme Court for leave to discontinue proceedings under the former plan, adopted in 1816, for opening Beelcman-street, and for the appointment of commissioners of estimate and assessment, under the. new arrangement. No commissioners have as yet been appointed ; and, according to the decision of the Supreme Court, in the case of The Corporation of New-York v. Dover-street, ( 18 Johns. Rep. 506 .) until the appointment of commissioners, no rights are so vested as to deprive the corporation of the power of refusing to go on ; and on application by them for leave to discontinue proceedings, it would, of course, be granted, and it was granted in that case. Perhaps, the better opinion is, that the corporation are not bound to go on, but may recede, and abandon their plan, at any time before the commissioners of assessment shall have reported, and their report shall have been confirmed, in pursuance of the 178th section of the act referred to in the bill. (Laws of N. Y. vol. 2. p. 342.) On the confirmation of the report of the commissioners, rights then become acquired and vested in the parties respectively. The corporation become seised, and may take possession of the land, and the individual owners become

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entitled to the damages assessed. (Laws of N. Y. vol. 2, p. 414. 418.) It is sufficient, however, for the consideration ** ' * i ^ of the present motion, that commissioners have not been appointed in this case, and that no rights are vested on either side. The owners of property affectéd by the plan proposed, cannot compel the corporation to go on, and carry the plan into execution. The corporation may abandon it, at their discretion; and the question then arises, whether the rights of the parties be not reciprocal, and whether the corporation can, or ought to have a power, in the mean time, to control the individuals who may be affected by their meditated arrangements, from the use and improvement, in their discretion, also, of their own property.

I have not been able to discover any principle that will authorize the interposition of this Court, by order or injunction, to stay the improvements which it is alleged the defendants are making upon their own ground. If the corporation should persevere in their new plan, and commissioners should be appointed by the Supreme Court, (and we cannot now know that either event will happen,) and damages should be assessed, the plaintiffs may, perhaps, have to pay for the value of the buildings now erecting by the defendants. This is all the inconvenience or loss that the plaintiffs can sustain, and would it not be damnum absque injuria ? It is a loss which the Court cannot prevent, without a dangerous and unprecedented interference with the enjoyment of private right. Suppose the injunction should be granted, and at the next term of the Supreme Court, the plaintiffs should elect to withdraw their application for the appointment of commissioners, or the Court should deny their motion, the defendants would have sustained a loss by the interruption of their business, and suspension of their improvements, for which no compensation could be afforded.

The great defect of the bill is, that the plaintiffs do not

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allege, or show any vested right, legal or equitable, to the ground owned by the defendants; and I do not know the o v / ease where this remedy has been afforded without the aliegation of some such right, which might be greatly, if not irreparably affected, by the acts sought to be restrained. As the case stands, the plaintiffs have shown no right or title, or raised any equity which can be a ground for an injunction, or by which I am authorized to control the defendants in the usual and ordinary enjoyment and improvement of property, to which, it is assumed, they have an absolute title.

Motion denied.