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Excelsior Brick Co. v. Village of Haverstraw

42 N.Y. St. Rep. 616 Court N.Y. Gen. Term Decision date 1891-12-14 English

Delivered by *617 Barnard, P. J.

Contents

Majority

p. 616
The Excelsior Brick Co., Resp’t, v. The Village of Haverstraw, App’lt.
(Supreme Court, General Term, Second Department,
Filed December 14, 1891.)

Headnote

Villages—Discontinuance and alteration of streets.
A resolution of village trustees discontinuing a highway and substituting a way to which the village has no title without application therefor, release of damages,’ certificate of freeholders or opportunity to the owners of property to be heard, is inoperative and void.
Appeal from judgment in favor of plaintiff, entered on a trial before the court without a jury.
Action to restrain the defendant, by its officers, from interfering with the lands of plaintiff. Such lands embraced territory which formerly constituted portions of certain streets.
On tie hearing a resolution of the board of trustees of the village, passed in 1887, was introduced' in evidence providing that such portions of those streets should be discontinued, but no certificate of freeholders that the same were unnecessary vras shown.
A. Wheeler {F. A. Brewster, of counsel), for app’lt; Irving' Brown (Calvin Frost, of counsel), for resp’t.

The order discontinuing parts of Division and other streets in the village of Haverstraw was inoperative and void. By the Eevised Statutes a road could only be discontinued upon the certificate of twelve freeholders. The charter of the village of Haverstraw is a substitute for this mode. The trustees were given power under the general act for the incorporation of villages “to lay out and open new roads and streets, ana to widen, change and improve other roads.” Chapter 291, Laws of 1870, title 3, 3, subd. 25.

By title 7, § 1 of the same law the trustees can discontinue, open or alter streets. This order provides for an alteration of Division street and also for parts of Liberty street and Allison avenue. An alteration can only be made on the petition of ten freeholders, residents of the village, unless all claims for damages on account of the alteration be released without remuneration. The order is not accompanied by this release and there was no certificate of freeholders. It was a mere resolution of the trustees discontinuing a highway and substituting a way to which the village had no title. The resolution in its effects destroyed the symmetry of the village street system, and without any right did so by the substitution of a narrow circuitous and unsightly substitute. Those lands lying on Division street altered out of existence are deprived of all compensation. There was no application, certificate of freeholders, and no opportunity to be heard before the jury, and no application or opportunity to be heard under the village charter.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.

Statutes and regulations cited