In re City of Amsterdam — 8 N.Y.S. 234

Majority

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In re City of Amsterdam.

(Supreme Court, General Term, Third Department,

December 28, 1889.)

Headnote

1. Municipal Corporations—Extension op Streets—Assessments.

Under the city charter of Amsterdam, § 90, (Laws N. Y. 1885, c. 181,) relating to the extension of streets, and providing that the commissioners shall assess the damages awarded for land taken on the land benefited by the extension of the street, the commissioners are not limited in their assessment to the property bounded by the extended streets, but can extend the assessment to other property, if, in their judgment, such property will be benefited by the extension.

2. Same—Notice to Owners.

The act not providing for notice to the owners of property to be assessed, a published notice that the city proposes to extend a street is not a sufficient notice to them, in order to validate an assessment of damages on lands beyond those bounded by the extended street.

Appeal from special term, Montgomery county.

Special proceedings instituted by the common council of the city of Amsterdam to take lands for the extension of Grove and Jay streets, in said city, under the provisions of the city charter, (Laws ÍT. Y. 1885, c. 131, § 90,) which is as follows: “Sec. 90. Whenever the common council shall have determined to lay out, alter, widen, straighten, or extend, make, open, or construct, any street, alley, lane, highway, public ground, or sewer, and to take and appropriate the land necessary for the same, and. shall have determined to assess the expenses of such improvement, or any part thereof, as hereinafter provided, they shall give notice of such determination to the owner or owners of, and other persons interested in, the lands, by publishing the same once in each week for four successive weeks in the newspapers printed in said city designated by the common council for the publication of official notices. Such notice shall specify in general terms the improvement to be made, and shall state that such owner or owners, and all persons interested in said lands, on or before a day to be specified, may file their claim for damages, if any they have, on account of such taking or appropriation, with the clerk of said city; and that, in case any claim for damages shall be filed as aforesaid, the said common council will apply, at a time and place to be specified in said notice, to a special term of the supreme court within the judicial district in which the said city is located, or the county court of Montgomery county, for the appointment of three commissioners to ascertain and assess the damages so claimed. If any such claim shall have been filed as aforesaid, the said common council, at the time and place in said notice specified, shall make application to said court for the appointment of such commissioners, and any person who shall have filed such claim shall have a right to be heard on such application; and in case any person interested in, or having a right to, any lands sought to be taken, shall not have filed a claim for damages, eight days’ personal notice of the time and place of such application shall be given to such person or .persons; or when such notice cannot be served personally within the state, or such person or persons are infants, or otherwise incapacitated from receiving personal notice, then service of such notice may be made in such a manner as the court may direct; and the said court shall have power to adjourn the hearing, and to exercise general authority.over the proceedings, in accordance with the rules and practice of said court, except as herein otherwise provided. The said commissioners, having been duly appointed, shall enter upon the performance of their duties without delay, shall each take and subscribe an oath before some officer authorized to administer oaths, faithfully, honestly, and impartially to perform their duty in making such ascertainment and assessment, according to the best of their abilities, and, shall give notice of the time and place of their meeting to make such ascertainment and assessment by publishing the same once a week for two successive weeks in the newspapers printed in said city designated by the common

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council for publishing official notices. At the time and place so appointed for their meeting, they shall view the premises, and receive any legal evidence, and may, if necessary, adjourn from day to day. They shall determine and award to the owner or owners, or other persons interested in said lands, so claiming damage, as aforesaid, such damage as, in their judgment, such owner or owners, or other persons interested, will sustain by such improvements, after making due allowance for any benefit which such owner or owners, or other persons interested, may derive therefrom. They shall at the same time assess and apportion the said damages, if any, of such improvement on the real estate, and against the person benefited thereby, as nearly as may be in proportion to the benefit resulting therefrom; but, if the whole of such damages cannot justly and equitably be assessed on real estate as above provided, then the said commissioners shall only assess such proportion thereon as, in their opinion, will be equitable and just; and the balance, not to exceed twenty-five per centum of the whole expense thereof, they shall assess to be paid by a general tax upon the city, and such balance shall thereupon become a charge upon said city, and shall be added to and raised with the next general assessment and tax for city purposes, and the same shall be payable to the persons entitled thereto, as soon as the same shall be collected as above provided. The said commissioners shall briefly describe the real estate upon which any assessment is made by them, and shall designate the owners or occupants of the several parcels of said real estate, and what parcels, if any, are owned by non-residents, according to the best information they can obtain. If there be any building or any land taken for such improvement, the value thereof to remove shall be ascertained in the assessment, and the owner thereof may remove the same within ten days, or such other time as the common council may allow, after the confirmation of the return of the commissioners; and, if the same shall be so removed, the value thereof ascertained shall be deducted from any damages awarded to said owner. The determination and assessment of the commissioners, signed by all of them, shall be returned to the common council within sixty days after their appointment. If either of the commissioners shall be unable to serve from sickness or other cause, the common council may at any time make application to the court in which the proceedings are pending to have some suitable person appointed in his stead, and such court shall thereupon make such appointment. After the determination and assessment of the commissioners shall be returned to said common council, they shall give notice of the same by publishing for two successive weeks, in the newspapers printed in said city designated by the common council for the publication of official notices, a notice that such report has been filed with the city clerk, and may be examined by all the persons interested, and that at a time and place to be specified in said notice the said report will be presented at a circuit or special term of the supreme court held in the judicial district in which the county of Montgomery is situated, or the county court of Montgomery county, for confirmation; and that all persons desiring to object to said report shall file their objections thereto, in writing, with the city clerk, before the day specified in such notice. And any party who may have appeared in the proceedings shall be entitled to the notice of such motion for confirmation in accordance with the rules and practice of the court. On the day specified in such notice, or on such other day or days as the said court may designate, the court shall hear the parties in regard to said report, and confirm such determination and assessment, or annul the same. If the said court confirm the same, it shall be final and conclusive; but, if they annul the same, they shall refer the matter back to the same commissioners, or to three others to be appointed by said court. The commissioners shall proceed in all things in the making and return of the second determination and assessment as though it were the first, and the same proceedings shall be had thereon as if it were an original determination and assessment. After the

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final confirmation of any such determination and assessment, and the filing of a certified copy of the order of the confirmation, in the office of the city clerk, the common council are authorized to cause such improvement to be made and completed, and the amount of any award so made and confirmed shall be a valid liability against said city, and payment thereof may be enforced against said city; and the court, upon the final confirmation of any award, may direct that the same be paid to, or deposited in some bank in the city of Amsterdam to the credit of, the person entitled thereto, and such payment or deposit shall discharge the liability of said city therefor.” Certain property owners outside of Grove and Jay streets opposed the confirmation of the commissioners’ report, and it was set aside at the special term, and the common council now appeals.

Argued before Learned, P. J., and Landon, J.

Edward P. White, for appellant, H. V. Borst, (Z. S. Westbrook, of counsel,) for respondents.

The commissioners appointed pursuant to the act,^[1] after-determining the amount of the damage sustained by the owners of land taken for the improvement, assessed this amount upon property which they deemed to be benefited. This property was not confined to that which was bounded on the extended streets, but included that which was on other streets, some of which would appear to be quite far distant,—a mile or more, as is said. The learned justice before whom the matter was heard at special term was of the opinion that this assessment could not stand as to the property which was not bounded upon tlae extended streets. He thought, however, that the language of the act could be construed to mean that the damage was to be assessed only on the land bounded on the extended streets. In that view, it might be held that the notices which are required by the act were sufficient to notify these property owners that they would be assessed, and therefore an assessment on them might be held to be valid. The learned justice, therefore, set aside the assessment, and sent the matter back for a new assessment in accordance with his views. We fully concur with him that the assessment should be set aside. But we are of the opinion that a fair construction of the act does not limit the assessment to the property bounded on the extended streets. Considering that not merely street improvements, but the making of sewers and the opening of places, are provided for by this same section, we think that the act intended that the commissioners might extend the assessment as far as, in their sound judgment, the benefits should extend.

Then arises another difficulty. The statute in no respect provides for notice to the persons who are thus to be assessed. Of course, we do not mean that personal notice is necessary; but we understand it to be settled law that some reasonable notice must be given to. the persons to be affected, before an assessment for damages occasioned by such improvements can be made. The notice .that the city proposes to extend such a street does not give the least notice to the person who will be assessed. A man owning property a mile away cannot conjecture that he will be assessed for an improvement which, as he thinks, does not benefit him. The notice published only informs the citizens that the street is to be extended; and, as construed by the city, every owner of property within the city limits must, at his peril, attend, and see that lie is not unjustly assessed. The necessity of notice before such special burden can be imposed was perhaps not as carefully laid down some years ago as it has been more recently, (Stuart v. Palmer, 74 N. Y. 188 ;) but the doctrine, when suggested, must commend itself as sound. We are of the opinion that there must have been given, in some way, a reasonable notice— not necessarily, perhaps, a personal notice—to the persons on, whose land the

1 Laws N. Y. 1885, c. 131, § 90.

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commissioners lay this assessment, before the assessment can be laid; and we are clearly of the"opinion that nothing which the act directed, and nothing which was in fact done, constituted such notice. Of course, in such proceedings, a notice not authorized or directed by the act is of no effect to give validity to the assessment. With these views, we affirm that part of the order which set aside the assessment, and reverse that part which sent the matter back for a reassessment. No costs of the appeal.