In re the Board of Street Opening — 45 N.Y. St. Rep. 658

Majority

p. 658

In the Matter of Application of The Board of Street Opening, etc., of the City of New York.^[1]

(Court of Appeals,

Filed June 7, 1892.)

Headnote

Appeal—Municipal cobfobations—Stbeet opening—Consolidation act,. §990.

Section 990 of the consolidation act, giving the right to demand a discontinuance of further proceedings to open a. street upon request of a certain proportion of the owners of the frontage, does not apply in the case of a street opening of the first class in upper New York in the name of the park commissioners, and an order confirming a report in such a case is. final and conclusive and not appealable.

Appeal from a judgment of the supreme court, general term’ first department, affirming an order confirming report of commissioners.

' This proceeding was commenced by the board of street opening and improvement of the city of New York, for and on behalf of the mayor, aldermen and commonalty of the city of New York, for the purpose of opening that part of Alexander avenue extending from Harlem river to Third avenue, in the twenty-third ward of the cit.y of New York, as a first class-street, pursuant to several acts of the legislature of the state. It was necessary for the purpose ©f opening such avenue to take-certain lands with the buildings and improvements thereon, mentioned in the petition of the above named board and particularly described therein. That petition was presented to the-supreme court sitting in New York city, and three commissioners of estimate and assessment were appointed for the purpose-of performing the duties relating to the premises as required, by law.

Various hearings were had before this commission in regard to the value of the property to be taken and the assessment to be made. The Harlem River & Port Chester Railroad Company, whose rights were affected by the proposed taking of the land for-the avenue above mentioned, appeared before the commission and made various objections and gave proof of various facts upon the subject matter of the investigation. The commissioners duly made their report to the supreme court, and the above mentioned company thereupon specified in writing its objections to the confirmation of the report, and upon the hearing.of the motion to confirm the same, such written objections were presented to the court, and it also appeared by affidavit and in due form, that the railroad company objected to the further proceedings upon the report of the

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commissioners, and upon its presentation to the court then and there prayed that they should be discontinued; aild in that affidavit it alleged facts which the company claimed brought it within. § 990 of the consolidation act in relation to the city of New York„ and which gave it a right to demand a discontinuance of further proceedings to open the avenue. The order made upon the motion to confirm the report recited that the railroad company did upon the hearing of that motion interpose an objection to further proceedings upon the said report and prayed that they might be discontinued, and the order contained the following language: “Now upon reading and filing the written objection of the Harlem River & Port Chester Railroad Company to further proceedings upon the said report, dated —, 1891, and the said affidavit of Henry W. Taft in support of said objection, it is ordered that the objections interposed by the said objectors be overruled, that the said motion be and the same is hereby granted, and that the said report of said commissioners be, and the same is hereby, in all respects confirmed.”

The railroad company made various other objections to the confirmation of the report in addition to the above objection, all of which were overruled, and the report as above mentioned was confirmed by the special term of the supreme court. Upon appeal to the general term, first department, that court affirmed the order, with costs, and from the order of affirmance the railroad company has appealed to this court.

Henry H. Anderson, for app’lt; D. J. Dean, for resp’t.

It is urged by the counsel for the city that the order in this proceeding is not appealable to this court.

The general rule is as claimed by the counsel, and so we have decided many times. Matter of B'd Street Opening, etc., 111 N. Y., 581 ; 20 St. Rep., 133 , and cases cited. ,

It is contended, however, that this is somewhat of a different case, inasmuch as it appears in the order that a request to discontinue was made and denied. The order does recite that objection was set up to the confirmation, and a request made for the discontinuance of the proceedings upon the coming in of the report, and the request and objections were overruled and the report was confirmed. If the provision for discontinuance was inapplicable to a proceeding to open a street of the first class, the objection is without force, and the statute making the order of confirmation final and conclusive applies to such a case as this. A brief glance at the legislation on this subject will enable us to judge clearly of the merits of this objection.

_ The act of 1813, in regard to the procedure for opening streets, did not contain any provision for discontinuing proceedings upon the application of a certain proportion in amount of those interested in the assessments for benefits or award for damages. It did provide that the order of confirmation should be final and conclusive. In 1839 (chap. 209) a provision was, for the first time, inserted regarding discontinuance. In 1874 (chap. 604, § 2), and again in 1876 (chap. 436, § 1), it was provided for opening streets

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in the northern part of New York under a new body, the park commissioners, and then by a later statute they were superseded by the present board of street opening. In the last named acts provision was made for opening in the new district streets and avenues of three classes, called respectively _ streets of the first, second and third class. In regard to streets of the first class, it was provided they should be opened whenever the board should . think the public interests required it, while as to streets of the second and third classes, they were only to be opened upon request, of a certain proportion of the owners of the frontage, being one-third in regard to the second class, and three-fourths in regard to the third class.

The proceedings to open the streets were to be those in force-when the application should be made. The statutes thus stood down to the time of the passage of the Consolidation Act.

In regard to streets not opened under the jurisdiction of the park commissioners, as provided for under the acts of 1874 and 1876, the proceedings took place under the title of the mayor, etc., and pursuant to the acts of 1813 and 1839. Under proceedings by the park commissioners to open streets, the question is whether in case of the opening of a street of the first class (which the avenue in question is) under the acts of 1874 and 1876, that, part of the act of 1839 providing for a discontinuance on request of the owners or persons interested applies. If it do, it might work the destruction of the purpose of the acts of 1874 and 1876, for under those acts and in that portion of the city covered by them a street of the first class could be opened whenever the board thought the public interests demanded it And yet, if the provisions relating to discontinuing the proceedings upon objection of a certain proportion of the persons were to apply, the commissioners would be subject to the control of the persons interested while in the discharge of their duties in opening streets-which in their judgment the public interests demanded should be opened. This we do not think was the intention of the act of 1874, as amended by the act of 1876.

By those acts the power and the responsibility were given to and reposed in the commissioners, and to them was confided the right to decide to open streets of the first class without reference to the wishes of those immediately interested as owners of lands-to be taken, or of lands to be assessed for such taking. The convenience of the general public in the opening of such a street, either a main route of travel or for drainage, as provided in the-statute, might be at war with the interest of the owners of the lands. The commissioners were to judge, and their decision to open should not in the nature of the case be reviewable by owners who might be opposed in interest to the interest of the public. Hence, when in the judgment of the commissioners the public interests demanded an opening of a street of the first class, the provision for discontinuance plainly does not apply to such a case. There is room enough for its application to other proceedings not involving the opening of a street of the first class in that portion of the city.

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It is urged, however, that the enactment of the consolidation act rendered the provisions of the act of 1839 applicable to all cases, and therefore applicable to the case of a street opening of the first class by the park commissioners. We do not think the claim rests on solid foundations. All parts of the act must receive full consideration and each must have force as far as possible. The two provisions as to opening streets of the first class and as to discontinuing proceedings to open streets, must each have effect if it is possible to give it Taking into consideration the history of the legislation leading up to the re-enactment of these measures in the consolidation act, I think it entirely plain that the provision for discontinuing refers only to those cases where other and inconsistent provisions are not made, and that in case of a street opening of the first class in upper Úew York in the name of the park commissioners (or now in the name of the board of street opening), the right to demand a discontinuance does not exist by virtue of § 990 of the consolidation act. As the provision for such discontinuance does not apply to a street opening of the first class, the order made confirming the report was final and conclusive under the statute, and is not therefore appealable here.

We cb not say that in any case the order confirming the report of the commissioners is appealable here, even if we should be of the opinion that it erroneously denied the application to discontinue and confirmed the report. So long as the report is confirmed, it might be alleged that no appeal lies here, because the statute so declares, no matter what ground was set up as a reason for not confirming it. We do not decide that question. We hold on this appeal that the portion of the statute providing for discontinuing does not apply to this case and hence nothing prevented the full application of the provision of the section that the order entered confirming the report should be final and conclusive.

The appeal should be dismissed, with costs.

All concur.