In re Opening Locust Avenue

The village of Port Chester was incorporated by chapter 818 of the Laws -of 1868. By section 4 of title 5 of that act it is provided:

On March 26, 1902, chapter 219 of the laws of that year was enacted, which added to said section 4 of title 5 of said act, at the end thereof, the following provision:

“ The board of trustees of said village by the unanimous vote of all its members may allow any such improvement to be made and may cause any property, rights or easements to be taken for such purpose without such petition and notice or in case of a petition against such remonstrances. Whenever the board of trustees shall intend to lay out, open, widen, straighten or extend any street, avenue or highway iu the said village and the lands of any person or corporation or any right or easement therein will be necessary for that purpose or whenever the board of trustees shall ordain that the lauds of any person or corporation or any right or easement therein will be necessary for public use for any of the purposes mentioned in the charter of the village of Port Chester, they shall cause the same to he surveyed and a map thereof to be made and tiled in the village clerk’s office, and a duplicate copy of such map shall also be tiled in the Westchester county clerk’s office showing the several lots, tracts or parcels of land and the rights or easements therein, which are deemed necessary to be taken, and in case of laying out, opening, widening, straightening or extending any street, avenue or highway, the commencement, course and termination of the proposed street, avenue or highway in, through or over the lands so to be taken, and for that purpose the said board of trustees, and those acting by its direction shall have the power to enter upon any lands in the said village. The hoard of trustees shall then declare by- resolution 'their intention to take and appropriate the said property for the proposed improvement, and thereafter they may purchase the said land or right or easement therein from the owner or owners thereof and pay

The appellant contends that since the enactment of chapter 219 of the Laws of 1902 the charter provides two wholly independent proceedings for opening and extending streets in said village, one of which she denominates the “ voluntary ” proceeding, and the other of which she denominates the “involuntary” proceeding, and she insists that under the latter of said proceedings the expenses of said improvement must be paid by a general tax on the property real and personal of said village and. that the same cannot he assessed upon the property benefited thereby in proportion to the amount of such benefits.

By section 2 of titlé 5 of said charter, as the same was enacted in 1868 and as it existed at all the times herein mentioned, it is provided: “ The trustees shall have power "x" * * to cause streets and avenues to be opened, extended, widened, regulated, graded and paved . * "x" *. The expense of all such improvements, except for repairs, shall he assessed and be a lien on tlie property benefited thereby in proportion to the amount of said benefit * * "x".”

Chapter 219 of the Laws of 1902 did not expressly repeal the other provisions of said charter which provide how the expense of opening streets shall he paid, hut in that act (Chap: 219, Laws of 1902, section 5) section 30 Avas added to said title of the charter of said village which added section provides as foIIoavs :

“ The said board of trustees are hereby authorized and empowered, whenever in their judgment the opening, widen

The charter with its amendments to the time herein mentioned does point out two ways for inaugurating a proceeding to open and extend a street; one where at least one-third of the persons owning land situated on the line of the street petition for the same; and another, in a case where the hoard of trustees unanimously favor such improvement, in which case they are authorized to open or extend a street without a petition therefor and even against a remonstrance signed by a majority of the persons who are to be assessed for the expense thereof. It also provides different ways for obtaining the title to the lands or easements required for the improvement.

In the construction of á statute it is necessary to read all the parts thereof to ascertain the legislative intent. An original statute with all the amendments thereto must be read together and viewed as one act. (Black on Interpretation of Laws, secs. 130, 131.)

When the charter of said village with its amendments is read as one instrument, it appears that the authority given to the board of trustees by unanimous vote to open and extend a street and obtain title to the lands or easements necessary

The provision of the charter which requires that all the expense of opening and extending a street shall be assessed on the property benefited thereby was in force when the act of 1902 was before the legislature and it clearly recognized the binding force of such provision in adding said section 30 to title 5 of the charter and thus giving the board of trustees further discretionary power in regard to paying for the lands and easements by the same act by which the powers of the board of trustees were enlarged as stated.

In view of the fact that the legislature was about to authorize the board of trustees to open and extend a street against the remonstrance of a majority or even all of the persons who would be assessed for the expense thereof it may have felt that the board of trustees should have some discretion about the amount that should be paid by special assessment. The act shows that the subject of raising the money to pay the expenses of opening and extending streets was considered by the legislature when the power of the board of trustees was so extended, and by said section 30 the board of trustees were authorized in any case when in their judgment the improvement is a benefit to the village at large and the inhabitants thereof, by unanimous vote of all its members to pay part of the expense by an issue of village bonds for that purpose, but it expressly therein provided that the amount so paid should not exceed fifty per cent thereof.

Such limitation, read with the other provisions of the charter, makes it necessary that the board of trustees assess the expense of such an improvement, other than the amount so paid by the issue of village bonds, upon the property benefited thereby.

On January 7, 1901, a petition signed by fifty-four persons was presented to the board of trustees of said village asking that Locust avenue be opened and extended through lands of four persons named. The petition was received and certain

After the enactment of said chapter 219 of the Laws of 1902 the board of trustees, by unanimous vote, passed a resolution in which they recited the filing of the petition of January 7th, 1901, and that they intended to lay out and extend Locust avenue through certain lands, including the lands of the appellant, and directed that the lands be surveyed and that a map thereof be made and filed as therein stated. A map was thereupon made and duly filed, and a further resolution was unanimously adopted declaring that it is the intention of the board of trustees to take and appropriate the lands of appellant and others designated on said map for the purpose of opening and extending Locust avenue.

On January 16th, 1903, the village of Port Chester entered into a contract with the appellant to purchase of her the lands in said contract described, being the lands included within the bounds of said Locust avenue, so to be opened and extended, for the sum of $1,387 to be paid in cash upon the execution and delivery of the deed as in said agreement provided. It was in said agreement further provided that the deed should be delivered within five days after the written request of said village at the hour and place indicated by it in such request, and that the village upon executing the contract and delivering to the appellant a certificate of indebtedness for $1,387 might take possession of said lands and open and grade said street.

The board of trustees unanimously resolved that in their judgment the opening and extending of said avenue will be and is of benefit to the village at large and'the inhabitants thereof, and that twenty-five per cent of the expense of opening and extending said avenue,- including attorneys’, engineers’ and inspectors’ fees shall be paid by issuing village bonds, and that the balance thereof shall be paid by the owners of property included in an assessment district described in said resolution in proportion to the benefits derived from such improvement. Commissioners were thereafter appointed by the County Court of Westchester county to estimate and assess' the expenses of the improvement and they thereafter made their report. An application was made to the Supreme Court to confirm such report, but the application was denied, with costs. From such order and a further order denying a motion to modify the order as first entered an appeal was taken to the Appellate Division, where the said orders were affirmed. (Matter of Locust Avenue, 93. App. Div. 417)

The court on said appeals said: “ The commissioners appointed by the County Court, assuming such appointment to have been regular, had jurisdiction only to deal with the expense and the assessment, for the opening of the highway, and when they attempted under the supposed authority of the village to go beyond this and to include the cost of grading and improving that way, they went outside of their powers. The village trustees could not confer- upon them any greater

After the first special assessment was vacated and set aside the village again applied to the County Court of Westchester county for the appointment of three commissioners to estimate and assess the expenses of said improvement and the amount of damages to be sustained and derived therefrom by the owners ©f the lands and buildings affected thereby, and such commissioners were appointed and they thereafter made their report.

About the time of the appointment of the second commission the appellant brought an action in the Supreme Court against the village alleging that it had taken possession of the lands described in the contract and applied the same to the purposes of a public highway and asked that it be compelled to complete the sale and accept a deed and pay therefor according to the terms of said contract, or that plaintiff have judgment against said village for the sum of $1,387, with interest. The village demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled, and it then answered the complaint, in which, among other things, it alleged that a reasonable time had not elapsed since the making of said contract within which to have requested or demanded the deed referred to in the contract, and it further alleged that the .only method authorized by the charter for raising money to pay for the lands was by assessment of the lands within an assessment district, and that no funds of the defendant were available for the purchase of plaintiff’s lands, and that said contract was executed and delivered with reference to the charter of said village, and that the defendant had diligently pursued and was then pursuing the steps required to raise the money to pay for plaintiff’s land, and that by reason thereof a reasonable time had not elapsed within which the deed of such land should have been demanded, and asked that the complaint be dismissed. ■

An application was made to the County Court of Westchester county to confirm the report of said second commission, and the appellant not only contested the same on its merits, but offered in evidence all of the proceedings theretofore had in relation to said matter, including the judgment roll in said action in the Supreme Court, and claimed that such judgment and the jwior proceedings in the matter of the opening of said street were res judicata against the village on such motion. ■

The County Court held that “The matter involved in this application having been adjudicated upon by the Supreme Court in the action of Margaret S. Theall against the village of Port Chester, the motion to confirm the report of the Commissioners herein should bo denied and the proceeding dismissed.” From an order entered in accordance with such decision, an appeal was taken to the Appellate Division, where the order of the County Court was reversed and the report of- said commissioners confirmed, and from the order entered on such reversal and confirming said report, this appeal is taken.

A judgment is not res judicata between parties as to incidental and immaterial matters not necessary in determining which party is entitled to judgment on the claim in suit or to

The authority of the village to assess the whole or any part of the expense of opening Locust avenue by special assessment upon the property benefited thereby was not involved in determining whether the plaintiff was entitled to judgment in her action in the Supreme Court. The charter of the village expressly authorized and empowered the board of trustees to purchase lands and easements for the proposed improvements and pay therefor such compensation as they should deem reasonable.

It was held in an opinion by the chancellor in Cumming v. Mayor, etc., of Brooklyn (11 Paige, 596), that where a corporation has power to enter into a contract for the purchase of lands the person so contracting with the corporation is entitled to payment out of the general fund of the corporation, leaving such amount to be reimbursed to the general fund out of the proceeds of the assessment when made. This decision was made in an action to recover on a contract to grade an avenue in the city of Brooklyn, and the chancellor said :

“ There is nothing in the charter which prohibits the corporation from entering into general contracts for the making such improvements. It is true, the same section of the charter which authorizes these improvements to be made directs the expense thereof .to be assessed upon the owners and occupants of the lands and premises benefited thereby, in proportion to the amount of such benefit. And as the amount of funds which the corporation is annually authorized to •aise for general purposes is limited by law, it is a prudent precaution in making contracts for grading and improving streets, etc., to regulate the mode of payment in such a manner as to give a reasonable' time to assess and collect the amount from the owners of the property benefited before the payments for the labor shall be demandable from the corporation. The assessment of the expense as a local tax is not however a

The- courts have frequently sustained the right of persons who have entered into contracts with municipal corporations either for the sale of lands or of property, or the performance of services, to recover the amount thereof in advance of the collection of a special assessment to pay therefor when the municipality has unreasonably neglected to collect the special assessment. (Baldwin v. City of Oswego, 2 Keyes, 132; Sage v. City of Brooklyn, 89 N. Y. 189 ; Weston v. City of Syracuse, 82 Hun, 67 ; Smith v. City of Buffalo, 44 Hun, 156 ; Reilly v. City of Albany, 40 Hun, 405 ; affd., 112 N. Y. 30 ; Buck v. City of Lockport, 43 How. Pr. 361 .)

Whether the appellant should have recovered in her action against the village in view of the fact that the delay in collecting-the special assessment was at least in part due to objections thereto made by her is not now before us. The judgment in the Supreme Court action is not a bar to the confirmation of the commissioners’ report.

In the report of the second commission they have included in the expenses of the proceeding all of the expenses and costs of the village in the first proceeding, which was held by the court to have been without jurisdiction. The aggregate amount of such expenses and costs, with interest thereon included in their report, is $517.83.

The expense of such proceedings and costs paid in an unsuccessful defense of the same were not actual costs and expenses

(dissenting). I am of opinion that the charter of the village of Port Chester, as amended in 1902, provides two distinct proceedings for opening streets.

The order of the Appellate Division should he reversed and the order of the County Court affirmed, with costs.

Cullen, Ch. J., Dray, Haight,1 Vann and Willard Bartlett, JJ., concur with Chase, J.; Edward T. Bartlett, J., reads dissenting memorandum.

Ordered accordingly.