In re the Opening of Newland Avenue of Jamestown — 38 N.Y. St. Rep. 796

Majority

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In the Matter of the Opening of Newland Avenue in the City of Jamestown.

(Supreme Court, General Term, Fifth Department,

Filed June 2, 1891.)

Headnote

1. Eminent domain—Commissioners—Power of majority to adjourn.

A majority of a board of commissioners appointed to appraise damages, for the taking of lands have the power to adjourn.

2. Same—No title acquired to lands not embraced in the originad NOTICE.

Where in a proceeding to take lands under the charter of Jamestown. (Laws of 1886, chap. 84) an objection was made that the land of a property owner was incorrectly described in the notice instituting the proceeding, and that a part was omitted, Held, that such an objection went to the effect and not to the regularity of the proceeding, and that the city would not acquire title to any more of the land in question than was embraced in said notice.

Appeal by Almira E. Horthrop, a land owner, from an order of special term confirming the report of commissioners to appraise damages.

A. Hazeltine, for app’lt; F. W. Stevens, for resp’t.

Assuming that the order of the special term was appealable to this court under the general provisions of § 1356 of the Code of Civil Procedure, which may be subject to question under the particular language of the act of incorporation of Jamestown (Laws of 1886, chap. 84, § 7), we find no reason to interfere with the award of the commissioners which that order confirmed. The objection that the commissioners lost jurisdiction of the proceeding when two of their number adjourned it to another day, in the absence of the third, who had been duly notified of the first meeting, is altogether untenable. The statute itself provides for adjournment, if necessary, from day to day (§ 7, supra) ; and that the power of adjournment resides in the majority of any such body or board, cannot be questioned.

The objection is made that the land of the appellant which is proposed to be taken is incorrectly described in the notice by which the proceeding was instituted; and, accordingly,' that the award, in respect to the appellant, was made upon an incorrect basis. Evidence was given tending to show that the depth of the plaintiff’s lot along the center line of the proposed street was either nineteen or thirty feet greater than the length of the strip to be taken from her lot, as described in the notice. But apparently this objection goes to the effect and not to the regularity or validity of the proceeding. It will not probably be claimed that the city acquires title to any more land of the appellant by this

p. 797

proceeding than that which is described in the notice as “ proposed to be taken and appropriatedand if that description does not cover all the land which is required for the proposed improvement, further proceedings will be necessary to condemn what is lacking.

Certainly this court will not interfere with the determination of the commissioners to the effect that the benefits of the improvement to the appellant equal or exceed the damages sustained by her by reason thereof. That determination was reached wholly upon view of the premises, and by commissioners familiar with the property and its surroundings. No testimony was taken on the hearing by them, and the only matters relied upon as impugning their judgment are statements contained in ex parte affidavits used in opposition to the motion to confirm their report. Those affidavits contain no suggestion of prejudice, partiality, or bad faith on the part of the commissioners, and do not make a case which would justify this court, even if it has the jurisdiction to do so, in overruling the conclusion of fact reached by the original tribunal.

The order appealed must be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Macomber, J., concurs.