In re the Application to Widen Washington Street of Poughkeepsie

Majority

p. 346

In the Matter of the Application to Widen Washington Street in the City of Poughkeepsie.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

1. Municipal corporations—Opening streets—Laws 1883, chap. 523.

The word “ section ” in the charter of Poughkeepsie is qualified by the words “ proposed to be improved,” so that a petition by a majority of the owners of the frontage proposed to be improved is a sufficient compliance with the charter to confer jurisdiction.

2. Same—Waiver of objections.

Objections to the form of the petition are waived by appearance before the commissioners and a trial of the case on the merits.

Appeal by a property owner from an award made to him for land taken to widen the street and the assessment made upon his remaining land for benefits.

Horace D. Hufcut, for app’lt; C. B. Herrick, for resp’t

This appeal is taken by the owner of a portion óf the property taken to widen a street from the award made to him for the land taken and from the assessment made upon his remaining land for the benefits arising from such widening and improvement.

The word “ section,” as used in the charter, must be given a practical meaning in order to carry out the purposes of the law.

In the connection in which the word occurs, it must be held to be qualified by the words “ proposed to be improved,” so that a petition by the majority of the owners on the frontage proposed to be improved is sufficient compliance with the charter to confer, jurisdiction. “ Section ” cannot mean any arbitrary and uniform length of street, like a block or one-half a mile, but it must refer

p. 347

to a portion of a street proposed to be improved, and when that portion is described it is a section of a street.

The petition herein was signed by a majority of the owners on the frontage proposed to be improved.

Bat if there was any doubt about the sufficiency of the petition it was waived by the appellant’s appearing before the commissioners and trying the case upon the merits. The only object of the notice was to get the party duly in court, and having appeared we think all objections to the form of the petition were waived. Grunberg v. Blumenlahl, 66 How., 62 .

We fail to see any irregularity in the proceedings of the common council or in the appointment of commissioners.

The fact that two of the petitioners attempted to withdraw their names from the petition after the commissioners had been appointed was immaterial. Town of Springport v. Teutonia Savings Bank, 84 N. Y., 403 ; People v. Sawyer, 52 id., 296.

The award both as to damages for the land taken and for benefits to the remaining land seems to be supported by the evidence; besides the personal examinations made by the commissioners must be given some weight upon these questions. Lewis on Eminent Domain, § 524.

The record fails to show that in making the award the commissioners acted upon any erroneous principle.

We are constrained to think that the decision of the commissioners was not only right in form and substance, but was made upon correct principles.

Order affirmed.

Dykman, J., concurs; Babnabd, P. J., not sitting.