In re the Department of Public Parks — 36 N.Y. St. Rep. 516

Majority

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In the Matter of the Application of the Department of Public Parks, Relating to the Opening of One Hundred and Sixtieth Street.

(Supreme Court, General Term, First Department,

Filed January 13, 1891.)

Headnote

Municipal cobfobations—Assessments—Evidence op dedication.

In proceedings to open a street a nomine 1 award was made to one B. outlie ground that his land had been dedicated to use as a street. On liis objection on motion to confirm, after evidence as to dedication had been taken, the report was referred back with directions to make him a substantial award, the court holding that there was no dedication, and the. order referring it back was affirmed by general term. On motion of certain taxpayers, who were liable to be assessed, permission was given them to present to the commissioners evidence that B/s land had been dedicated to public use. Feld, that the former order related to the facts as they then appeared, having no prospective effect or application, and leaving the subject of dedication to such further examination as might be made of' it by the commissioners, and that the order in question was properly made, and was no encroachment on the decision of the general term.

Appeal from an order made by Mr. Justice Andrews,, dated the 4th day of April, 1890, granting the prayer of the petitioners Alfred Roe and others to be permitted to submit and present to the commissioners of estimate and assessment their objections herein, and to prove in support of the same “ that the land required for the said street between Kingsbridge Road and Tenth avenue had been dedicated to public use, and to present testimony in support thereof, and that the said commissioners of estimate and assessment be .permitted and directed to receive and consider such testimony, and that such testimony may be offered, in respect to the said objections and dedication, and that the said commissioners make and present to the court such report as in. view: of the objections and testimony so presented may be just, and proper.”

The application was opposed upon the ground that an order-had heretofore been made in these proceedings referring the matter back to the commissioners of estimate and assessment for the specific purpose only of taking proof as to the value of the land of one Buckley. Úpon a motion to confirm a prior report of the commissioners herein an- order had been made at special term by Mr. Justice Donohue, referring the matter back to the commissioners for the sole and specific purpose of making substantial awards to the objector, William H Buckley, the owner of the land within the lines of the street sought to be acquired in this proceeding, which the petitioners claim had been dedicated by the-said Buckley or his predecessors in interest to public use; and said order on appeal therefrom had been affirmed by the general term of this court

It appears from the papers that proceedings had been taken by the city to acquire the title to the land in question. That in the preliminary abstract of the commissioners only nominal awards had been made for Mr. Buckley’s land. Mr. Buckley appeared before the commissioners and filed objections to said report, claiming that he was entitled to a substantial award. Testimony

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was taken before the commissioners upon the question of the dedication of the land belonging to Mr. Buckley.

Parties who would be assessed in said proceedings to a considerable amount in case a substantial award was made, and who were then assessed, as it appeared by the proposed abstract of the commissioners, appeared and contested the right of Mr. Buckley to this substantial award.

They were represented upon that proceeding by Mr. James A. Deering, who now makes this application on behalf of the petitioners herein, Alfred Boe and others.

All the proof which was submitted to the commissioners, tending to show a dedication of Mr. Buckley’s land, was furnished and produced by Mr. Deering on behalf of his clients, and was presented to the court upon the motion for the confirmation of the commissioners’ report.

Upon the hearing of the motion for the confirmation of said report, the same being opposed on behalf of Mr. Buckley, it was held by Mr. Justice Donohue that there had been no dedication of the land by Mr. Buckley or his grantors, and the report was referred back to the commissioners with directions to make a substantial award to Mr Buckley for his land. (See affidavit of John C. Shaw and order of Mr. Justice Donohue.)

An appeal was taken from this order by the city, and the same was affirmed on appeal. The opinion will be found reported in 48 Hun, page 488; 16 H. Y. State Bep., 6.

The commissioners thereupon met for the purpose of determining the amount to be awarded to Mr. Buckley for the land in question and made a substantial award amounting to $11,750, and thereupon filed their abstract and assessed the property within the area of assessment a sufficient amount to pay for the said award' and the expenses of the proceedings. Objection being made by Mr. Buckley to this award, it was subsequently raised to $17,750 by the commissioners. Thereupon they filed a further report and gave notice that they had completed their new or amended .estimate and assessment, a copy of which notice is annexed to the petition of the petitioners herein.

The petitioners, Boe and others, thereupon presented this petition, and the order was made thereon from which the present appeal was taken.

John G. Shaw, for app’lt; James A. Deering, for resp’ts.

It was stated upon the argument herein, and not denied, that, although this appeal was in progress, yet in pursuance of the order from which it was taken the commissioners had received the objections of the property owners and heard the testimony as to dedication, that the proofs had been submitted, and that the entire matter was before them for decision.

The matter was sent back to the commissioners by an order of the special term, Justice Donohue presiding, and, as we have seen, for the purpose of making substantial awards to the respondent William F. Buckley, and upon the proposition that there had been no dedication by him of a strip of land referred to as One Hun

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dred and Sixtieth street, which it was proposed to take in this proceeding. That question was considered elaborately at the general . term upon an appeal from that order (see opinion of Presiding Justice Yan Brunt on the appeal, 48 Hun, 488 ; 16 N. Y. State Rep.. 6), and the result was that the order was affirmed; that is to say, the matter was sent back to the commissioners that they might make substantial awards to the respondent William F. Buckley for the property which he owned that the city desired and which had not been dedicated by him.- The application to the special term was for liberty to introduce evidence on the question of dedication resting upon the facts stated in the appeal, and to which reference has been made. The learned justice in the court below was impressed by what he considered the restriction caused by the decision of the general term,, but thought that inasmuch as the order did not expressly authorize the commissioners to receive the objections and testimony offered by the petitioners it was questionable whether it was not a bar to the receipt of the same, thinking that if that view prevailed the petitioners could only obtain relief by a modification of the order of the general term, if that tribunal thought fit to make it, but that in view of the constitutional and statutory right of the petitioner to be heard, before he could be lawfully compelled to pay an assessment, it was doubtful whether the court had the power to make an order which would deprive him of the right to have his objection and testimony received, upon a further consideration of the matter by the commissioners.

It was thought by the learned justice that under these circumstances there was some force in the argument that although the order did not expressly authorize the commissioners to receive such objections and testimony, it did not prevent their doing so.

It cannot be questioned that there is merit in the application, for the reason that if the dedication can be established it would be unjust to make the petitioner or any persons assessed pay for the value of the land supposed to be owned by Mr. Buckley.

The reasonable view of the decision of the general term, in contemplation of the provisions of the consolidation act of 1882, § 986, would be that the decision made related entirely to the facts as they then appeared, having no prospective effect or application ; and leaving the subject of dedication to such further examination as might be made of it by the commissioners in the exercise of their duty. Technically it may' be said with great propriety that the making of a substantial award to the respondent Buckley would necessarily involve an examination as to his title to the premises for which it should be made, and especially in reference to § 890 of the consolidation act, which provides that after hearing any matter which may be alleged against the same the court shall either confirm the report or refer the same to the commissioners for revisal and correction, or to new commissioners to be appointed by the court, to reconsider the subject matter thereof. It is contended, it is true, that the words “ for revisal and correction,” indicate that the reference back to the commissioners was to be for the purpose or to the extent only to which

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the court directs and orders that the report be revised and corrected. But the whole object of sending reports in kindred proceedings back to commissioners is to secure the rights of all parties, even although it involve a re- or further examination of the facts and circumstances naturally, necessarily and legally involved.

For these reasons it is thought that the order from which the appeal has been taken, made as it was in justice and proper as it was ex debito justitia, was no encroachment upon the decision of the general term, was justly made and should be affirmed.

Van Brunt, P. J., and Daniels, J., concur.