People ex rel. Wynne v. Morris

In Matter of Waverly Waterworks Co., 85 N. Y. 479 , it was decided that the Special Term had the power to impose, as a condition of discontinuance of condemnation proceedings, the payment of more than the taxable costs and disbursements, upon the theory that the proceeding could only be discontinued by leave of the court, and that the Special Term had discretion to refuse leave. But there is a plain distinction between the exercise of the right of eminent domain by a corporation, representing private interests, and such exercise by public officers. Matter of Commissioners of Washington Park, 56 N. Y. 144 . In that case the Special Term had granted leave to discontinue upon payment to the landowners, who were parties to the proceeding, of their necessary and reasonable costs and expenses. The point discussed was whether any rights had become vested, which required the court to refuse leave. The earlier decisions on that question were discussed by Judge Rapallo, and the conclusion was reached that, until the confirmation of the report, no rights vested in the property owners. The court did not determine whether the Special Term had discretion to refuse leave. The order, imposing terms, was affirmed on the theory that by making the application the park commissioners conceded to the court the power to determine the terms upon which it should be granted, and in that connection it was said: “The cases cited seem to recognize the necessity of such leave.” Undoubtedly, by entertaining and granting motions for leave to discontinue, the courts in a sense recognize the necessity of such leave; but the point was not presented or considered in any case which I have been able to. find, and it is obvious from the opinion of Judge Rapallo that he did not intend to pass upon it.

When the question first arose in this state, there appears to have been a difference of opinion between the Supreme Court and Chancellor Kent as to the right of a public officer or board to discontinue. See Matter of Beekman Street, 20 Johns. 269 ; Corporation of New York, 6 Johns. Ch. 46 . But the latter’s view, to the effect that the corporation might abandon their plan at any time before confirmation of the report, was later adopted by the Supreme Court. See People v. Corporation of Brooklyn, 1 Wend. 318 , 19 Am. Dec. 502 ; In the Matter of Canal Street, 11 Wend. 155 ; In the Matter of Anthony Street, 20 Wend. 618 , 32 Am. Dec. 608 ; Martin v. Mayor of Brooklyn, 1 Hill, 545 . No doubt it was assumed by the Legislature that the effect of those decisions was to require application to the court for leave to discontinue, because, by chapter 209, § 7, of the Laws of 1839, relating to the city of New York, application to the court’ for leave to discontinue was dispensed with.

Section 1000 of the present charter (Laws 1901, c. 466), relative to proceedings for. the acquisition of property for streets and parks, provides for discontinuance by the board of estimate and apportionment, and in such case for the payment by the city of the necessary disbursements incurred by interested parties; but I do not think that the inclusion of a provision on the subject in the chapter relative to the

Of course, ordinarily, an action or proceeding in court can be effectually discontinued only by an order of the court. But a proceeding may abate without an order of the court. In this case the Legislature has delegated the power to exercise the right of eminent domain to certain municipal boards or officers for a governmental purpose; i. e., the acquisition of a school site. No private interest, not even that of the city itself as a proprietor, is concerned in the exercise of that right. It was for the board of education and the board of estimate and apportionment to determine whether the public interest required or justified the acquisition of this site for school purposes, and until private rights have intervened they alone can determine whether the public interest requires a discontinuance or abandonment of the proceedings. Surely they are not bound to go ahead, if it develops, contrary to expectation, that the cost of the particular site selected will be prohibitive. Their resolutions selecting the site are the basis of the proceeding. If it be conceded that they have the power to rescind those resolutions, as I think it must be, it necessarily follows that upon such action being taken the proceeding abates. Surely it cannot be continued in the absence of any warrant for it. The rights of property owners have not been prejudiced. Both their ownership and possession remain undisturbed. The case is very different from a mere suitor undertaking to withdraw from a litigation without an order of the court. If this had been a proceeding directly authorized by the Legislature, no one would question that it abated upon a repeal of, the act authorizing it to be instituted. It seems to me that the case is no different from the fact that the power of the Legislature has been delegated to a municipal' board or boards.

Moreover, while there is no express authority on the right to discontinue without leave of court, there is authority for the proposition that the relator had no such right to the continuance of the proceedings as justified the granting of the peremptory writ to require the filing of the report. See People v. Corporation of Brooklyn, supra. That was a street opening proceeding. The commissioners of estimate and assessment were appointed and made their report. The act in question required the trustees of the then village of Brooklyn to cause the report to be filed with the clerk of the Court of Common Pleas at the next term thereof; but the trustees, upon receiving the report, refused to file it, and it was held that they had discretion to refuse to proceed, and that the relators, property owners, had no such right as

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.