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In re East 177th St. & Bronx Park Avenue

141 N.Y.S. 231 Court N.Y. Sup. Ct. English

Delivered by GIEGERICH, J.

Contents

Majority

p. 231
(80 Misc. Rep. 346.)
In re EAST 177TH ST. AND BRONX PARK AVENUE IN CITY OF NEW YORK.
(Supreme Court, Special Term, New York County.
April, 1913.)

Headnote

Eminent Domain (§ 194*)—Condemnation Pboceedings—Amendment.
Greater New York Charter (Laws 1901, c. 466) § 442, authorizes the board of estimate and apportionment, as required by the public interest, to change the map or plan of the city, so as to lay out new streets, and to widen, extend, alter, or close existing streets; and section 974 declares that the court, at any time, shall have power to amend any such proceeding, or to cause property affected by any defect or informality or lack of jurisdiction to be excluded or included by amendment. Held, that where, in proceedings to acquire title to a street, the board of estimate and apportionment, under section 442, had decided that it was for the public interest that the lines of the streets to be acquired be changed, so as to reduce the width from 80 to 60 feet, the court had
no power to alter such determination, and omit a portion of the street from the proceeding; its function being solely to grant an amendment conforming the proceeding to.the resolution of the board.
[Ed. Note.—For other cases, see Eminent Domain, Gent. Dig. § 523; Dec. Dig. § 194.[1] ]
In the matter of the application of the City of New York to amend the proceeding to acquire title to East 177th Street, from Tremont Avenue to Morris Park Avenue, and Bronx Park Avenue, from Tremont Avenue to Morris Park Avenue, in the borough of the Bronx, to which W. A. Soye filed objections. Application granted.
Archibald R. Watson, Corp. Counsel, of New York City, and John J. Kearney, Asst. Corp. Counsel, of New York City, for the motion.
W. A. Soye, of New York City, opposed.

The city moves for an amendment of this proceeding in accordance with a resolution passed by the board of estimate and apportionment on June 13, 1912. After commissioners of estimate and the commissioner of assessment had been appointed herein, the board of estimate and apportionment passed a resolution excluding from the lines of the streets as laid out on the final map of the city of New York certain lands which the commissioners of estimate and commissioner of assessment had been previously appointed to condemn. Such resolution was adopted pursuant to section 442 of the Greater New York Charter (Laws 1901, c. 466), which provides:

“The board of estimate and apportionment is authorized and empowered, whenever and as often as it may deem it for the public interest so to do, to change the map or plan of the city of New York, so as to lay out new streets, parks, bridges, tunnels and approaches to bridges and tunnels and parks, and to widen, straighten, extend, alter and close existing streets. * * * ”

After such change was made in the lines of the streets by the resolution of the board of estimate and assessment, it became necessary, of course, to make a suitable amendment in this proceeding, and accordingly this motion is brought on pursuant to section 974 of the Greater New York Charter, which in part provides:

“Said court shall have power at any time to amend any defect or informality in any special proceeding authorized by this title that may be neces
p. 232
sary, or to cause property affected by said defect, informality or lack of jurisdiction to be excluded therefrom, or other property affected by said defect, informality or lack of jurisdiction to be included therein, iby amendment * * * ”

On the return day of the motion one W. A. Soye appeared in person and entered certain protests, which are embodied in a memorandum submitted by him. Mr. Soye appears to be the owner of the premises located on Bronx Park avenue, between Walker avenue (West Farms road) and East 180th street. In the original form of the proceeding the commissioners were appointed to acquire title to this, portion of Bronx Park avenue to a width of 80 feet. The proposed amendment reduces the width of such portion to 60 feet. Mr. Soye asks that the portion of Bronx Park avenue between Walker avenue and East 180th street be omitted from the proceeding.

The board of estimate and apportionment, under the authority of said section 442 of the charter, having decided that it was for the public interest that the lines of the streets to be acquired should be changed, this court has no power to alter such determination (Matter of William and Anthony Sts., 19 Wend. 678 , 681; Matter of John and Cherry Sts., 19 Wend. 659 , 667; Matter of Albany St, N. Y. 149, 151, 25 Am. Dec. 618 ; Wiggin v. Mayor, 9 Paige, 16), and its function on the present motion is solely to conform this proceeding to the resolution of that board changing the lines of the street.

The motion to amend should therefore be granted. Order signed.

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