Rehfeldt v. City of Brooklyn — 46 N.Y. St. Rep. 302

Majority

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Catherine A. H. Rehfeldt, Resp’t, v. The City of Brooklyn, App’lt.

(City Court of Brooklyn, General Term,

Filed April 25, 1892.)

Headnote

Municipal cobpobations—Statutes—Repeal.

Chapter 293, Laws 1852, authorizing the improvement of certain specified streets in the city of Brooklyn, was not superseded or repealed by the general plan for improvement of streets contained in the city charter of 1854, as the plans are not inconsistent and can both stand; the former applying to the streets named, and the latter to streets generally.

Appeal from judgment of special term in favor of plaintiff.

A. F. Jenks (Richard B. Greenwood, Jr., of counsel), for app’lt; Chas. J. Patterson, for resp’t.

Judgment was recovered by plaintiff at special term for $1,500 and interest, the amount of an award made to her in proceedings taken by the city for the widening of Henry street, and from this judgment the defendant appeals.

The proceedings resulting in this award were taken under the Laws of 1852, chapter 293, § 4, authorizing the common council, on the petition of any owner of land on Henry street, between Atlantic and Degraw streets, to open and widen Henry street be

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tween such streets ten feet on the easterly side .thereof, and to prescribe and limit the district beyond which the assessment shall not extend, and to apply to the county court for the appointment of three commissioners to apportion 'and assess upon the lands to be benefited the costs and expenses incident to such opening and widening. In 1871 such land owner petitioned the common council to so open and widen this portion of Henry street. On June 5, 1871, the common council, in expressed pursuance of §§ 4, 5 and 6 of the Laws of 1852, chapter 293, prescribed and fixed the assessment district “ along the line of the proposed opening, in width 100 feet on the easterly side thereof,” beyond which it shall not extend, and directed the corporation counsel to apply to the county court for the appointment of three commissioners to apportion and assess upon the lands to be benefited the costs and expenses incident to such opening and widening. The city, through the corporation counsel, made such application to the county court, asking that three commissioners be appointed in pursuance of the Laws of 1852, chapter 293, “to estimate the expense of the improvement, and the damages to be sustained therefrom by the owners of such lands.” The court, on June 26,1871, made such order, appointing three commissioners, reciting that it was done in pursuance of the Laws of 1852, chapter 293.

Section 4 of this act provides that the proceedings subsequent to the appointment of such commissioners shall be governed by the provisions of the Laws of 1850, chap. 144, title 4.

The commissioners made their report addressed to the common council and filed it with the county clerk, as required by § 12 of the Laws of 1850, chap. 144. The commissioners, in their report, awarded the plaintiff for her premises required for such opening and widening $1,500. They made no assessment upon the part of her premises not required for the widening for the expenses and costs of the opening. There may have been good reasons for the same; we would suggest that the remaining portion of her lot was not benefited in their opinion, and such being the case, no assessment could be made, for § 4, chap. 293, Laws of 1852, limits the assessment to such lands in the district fixed by the common council as will “ be benefited ” by the widening. This would apply to the lands of the whole assessment district, for, strange to say, the district was actually confined to the remainder of 100 feet deep lots fronting on the east side of the street, and from which ten feet were taken, reducing the lots to 90 feet in depth. Then, again, there were substantially no expenses incident to the opening and widening of the street, except the awards of damages to those whose property was taken, for by § 6, chap. 293, Laws of 1852, the ten feet strip taken off the front of each lot continued, by this provision, to be used as the court yards of such owners, if not then already built upon, and if then built on, to be occupied by such buildings. So the result of this opening and widening was to take the fee of the ten feet from the former owners, and prohibit any encroachments thereupon thereafter by erection of buildings. The total sum of awards for damages-of land taken was substantially the total cost of the improve

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ment, and no assessments could be made if the commissioners were of the opinion that a lot fronting on the street was not benefited by reducing its depth ten feet. The report of the commissioners was, by the supreme court, October 17, 1874, duly confirmed and directed to be delivered to the common council on the motion of the corporation counsel, and after hearing those objecting thereto, in pursuance of Laws of 1850, chap. 144, § 12 to 15, both inclusive. This gave the city absolute authority to make the improvement, and as has already been shown, the improvement was then made by taking the title of the ten feet strip from the owners and prohibiting the erection of any building thereon after that. Section 16 of the same act provides that the city comptroller shall pay the awards without deduction therefrom by way of fee or' commission. This, in our opinion, deprived the plaintiff of her property, and adjudicated that she was entitled to $1,500 from the city for compensation therefor. Sage v. City of Brooklyn, 89 N. Y., 189 . The proceeding resulting in the award sued for was taken in pursuance of Laws of 1852, chap. 293, a special act providing for opening and widening Henry and two or three other streets specified therein, and the provisions of Laws of 1850, chap. 144, title 4, which are incorporated in the act of 1852 by reference thereto.

The city’s defense to this action is based upon the contention that the provisions of the act of 1852 are superseded and repealed by the adoption of a general plan for opening and widening streets generally, and imposing assestments and making awards incident, thereto, "found in the Brooklyn charter, Laws of 1854, chap. 384, title 4, as amended by Laws of 1862, chap. 63, § 15 ; that instead of sending the report of commissioners to the common council, after its confirmation by the supreme court, according to the requirements of the acts of 1852 and 1850, it should have been sent-to the board of assessors to be acted upon as required by § 15, chap. 63, Laws 1862, viz., to apportion the assessments and strike-a balance between each assessment and award on each piece of land.

We do not think the act of 1852, which is a local and special act for the improvement of Henry and two or three other streets-specified by name therein, and containing a complete scheme of making assessments and awards for damages, was superseded or repealed by the general plan for improvements of streets generally contained in the laws of 1854 and 1862. The plans are not inconsistent : both can stand together, the latter applying to the streets-generally and the former to the streets specially named in the act. Both are valid and the general plan of 1854 at best is only cumulative to the special plan of 1852.

This view seems to be sustained by the saving clause of Laws-of 1854, chap. 384, tit. 11, § 14, which declares the same to be a public act, and that all acts and parts of acts not inconsistent with the provisions thereof shall remain in full force and effect. This-construction is further supported in Matter of Central Park, 50 N. Y., 493 ; Knapp v. City of Brooklyn, 97 id., 520 ; Van Denburg v. Greenbush, 66 id, 1; People v. Quigg, 59 id., 83; Whip-

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pie v. Christian, 80 id., 523, and McKenna v. Edmundstone, 91 id., 231.

It appears rather late for the city to now object to the adjudication of plaintiff’s right to this award by judgment of the supreme court confirming the report of the commissioners rendered on the motion and at the request of the city. The city instituted the proceedings under the act of 1852, and boldly pursued its provisions to the very end, reciting the fact in every step taken, and hesitates only when the owner, deprived of his property rights, asks the city to pay over, under Laws of 1850, chap. 144, § 16, the compensation awarded at its instance for the property taken without the consent of the owner under the right of eminent domain.

The judgment must be affirmed, with costs.

Clement, Ch. J., concurs.