Oakley v. Gardiner — 28 N.Y.S. 972

Majority

p. 972

OAKLEY v. GARDINER et al.

(Supreme Court, General Term, Second Department

May 14, 1894.)

Headnote

1. Municipal Corporations—Assessment District—Low-Water Mark.

Where an assessment district in Long Island City is described as extending to a point on the western boundary of the city which is low-water mark, the western boundary of the assessment district is the actual line of low water, as it existed at the time of the assessment.

3. Same—Judgment eor Libn.

Where the northern boundary line of an assessment district runs through a pier, a judgment declaring a lien on the portion of the property south of such line, “including the dock or pier extending from said property into the East river, together with all the right, title, and interest of the parties hereto in, to, and over the lands under and between high and low water mark of the East river opposite the same, and southerly of the aforesaid line," does not declare the entire pier to be subject to the lien, but only so much as is south of the line.

■ Appeal from special term, Queens county.

Action by Rosalie Adele Oakley against John Lyon Gardiner and others for partition. From an interlocutory decree of partition and sale, defendants Gardiner appeal. Affirmed.

The real estate which is the subject of this action is situated in Long Island City, and in the year 1888 a portion thereof was sold for nonpayment of assessments levied thereon to pay for certain street improvements. After the commencement of this action, the parties entered into a stipulation that a receiver be appointed of the property so sold, with authority to redeem the

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same, and to borrow upon his certificates the money necessary for such purpose, which certificates were to be a first lien upon the assessed property, and be first paid from the proceeds of the sale thereof. Such certificates were issued, and the property redeemed, and the questions presented upon this appeal relate to the lien of such certificates.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

J. Langdon Ward, for appellants.

Thos. P. Wickes, for respondent Oakley.

Evarts, Choate & Beaman, for respondents Rutherturd & Remsen.

The question presented for our decision is whether the pier and land under water upon the northerly side of Nott avenue, and immediately in front of lot 50, as a part of such lot, and was subject to the lien of the assessments. The land under water in front of the lot was granted to the parties to this action by the state in December, 1871. The northerly boundary of the improvement district begins at the intersection of the westerly boundary line of the city with a line drawn parallel with Nott avenue and 100 feet northerly therefrom. Laws 1874, c. 326, § 1. The. westerly boundary of the city is low-water mark on the east shore of the East river. Laws 1871, c. 461, § 1. The pier in question was first constructed in 1877, and subsequently reconstructed and enlarged. The appellant contends that the westerly boundary of the improvement district is the line of original low-water mark; while the respondent claims that it is the westerly line of the city, which advances into the river, as docks, piers, and other improvements are constructed along the water front. It has been repeatedly decided that the boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side, whether corresponding with original low-water line or changed by the construction of piers and docks (Tebo v. City of Brooklyn, 134 N. Y. 341 , 31 N. E. 984 , and cases cited); and that rule is applicable to Long Island City. We are of the opinion that the legislature intended that the westerly line of the improvement district should correspond to the westerly boundary line of the city as it should exist at the time the commissioners should, in accordance with the statute, file their map. On December 6,1877, the date of the filing of the map, the westerly line of the pier was substantially the same as it is now. The jurisdiction of the city extended to that line, and there was the westerly line of the improvement district. The case of Insurance Co. v. Voorhis, 71 Hun, 117 , 24 N. Y. Supp. 529 , does not aid the appellants. A principle of public policy and public convenience underlies the decision in Tebo v. City of Brooklyn and kindred cases. The Voorhis Case involved no public question. It related solely to the rights of private individuals, and there was no principle of law which could extend the mortgage to lands acquired by the mortgagor subsequent to the execution of the mortgage.

A part of the pier in question lies north of the northern boundary of the improvement district, and the appellants claim that such part is by the judgment declared to be subject to the lien

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of the receivers’ certificates. The assessment could not extend beyond a line 100 feet north of the northerly line of Nott avenue, and the receivers’ certificates attach to the same property. But I do not understand the judgment to extend the lien beyond that line. The twenty-sixth paragraph of the judgment is as follows:

“The holders of certificates * * * have a lien upon the portion of said property lying southerly of a line drawn parallel with Nott avenue and one hundred feet northerly therefrom, * * * including the dock or pier extending from said property into the East river, together with all the right, title, and interest of the parties hereto in, to, and over the lands under and between high and low water mark of the East river opposite the same, and southerly of the aforesaid line, drawn parallel with the northerly side of Nott avenue and one hundred feet northerly therefrom.”

The description is qualified by the last sentence, and the lien is limited to that part of the pier and land under water south of the north line of the improvement district. The same qualification appears in the twelfth paragraph of the judgment, declaring the extent of the lien of the assessments. If, however, the form of the expression used is regarded by either party as equivocal or uncertain, it can be corrected by motion made to the special term. The judgment is affirmed, with costs to be paid by the appellants, with leave to either party to move at special term to make more definite the provision of the judgment relating to the extent of the lien of the certificates. All concur.

Cases cited

Tebo v. City of Brooklyn 134 N. Y. 341 N.Y. 1892-10-01 p. 973