In re the City of New York — 234 N.Y. 562

Majority

p. 562

In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Lands and Lands under Water Necessary for the Improvement of the Waterfront and Harbor between Simonson Avenue, Clifton and Arietta Streets in the Borough of Richmond. The People of the State of New York, Respondent.

Headnote

Eminent domain — condemnation proceedings — New York city — condemnation proceedings to acquire lands owned by state not authorized by charter of city of New York.

Matter of City of New York (Waterfront Improvement), 201 App. Div. 593 , affirmed.

(Argued October 9, 1922;

decided October 24, 1922.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 9, 1922, which reversed an order of Special Term denying a motion to dismiss the proceeding so far as it related to lands owned by the state and dismissed the proceedings as to the People of the state of New York. The questions were, as to whether the power of eminent domain may be exercised by a creature of the sovereign with respect to lands owned by the People of the state, and whether the legislature in enacting the Greater New York charter conferred the power of condemnation on the city of New York, as to state-owned lands, either by express words or necessary implication. Both questions were answered by the Appellate Division in the negative.

John P. O’Brien, Corporation Counsel (Henry W. Mayo and Charles J. Nehrbas of counsel), for appellant.

Charles D. Newton, Attorney-General (Anson Getman of counsel), for respondent.

Merle I. St. John and Benjamin Catchings for Frank C. Mebane, receiver of Symes Foundation, et al.

Order affirmed, with costs, on ground statute does not authorize condemnation proceedings; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin and Andrews, JJ. Dissenting: Crane, J.