In re Anthony-street — 20 Wend. 618

Majority

p. 618

In the matter of Anthony-street, in the city of New-York.

Headnote

Until Hoe final confirmation of a report of commissioners of estimate and assessmen6 in the laying out or widening of streets, individuals whose property was contemplated to be taken, do not acquire any vested' rights in respect to the damage$ assessed.

The corporation who set the proceedings on foot may, by leave of the court, discontinue them at any time before the final confirmation of the report ; and they may do so if the report hasbeen sent back to the commissioners for review in one or two particulars, although it was approved by the court in most respects.

On a motion by the corporation for leave to discontinue, affidavits showing the impolicy and injustice of granting the motion are inadmissible.

In this case the corporation presented a petition for leave to discontinue their proceedings in the above matter.

The petition stated among other things, that, on the application of the petitioners, made to this court, May 4th, 1837, commisioners of estimate and assessment had been appointed, who reported at the special term, in March last, when the petitioners moved this court that the report be confirmed. The motion being opposed, an order was directed and entered by the clerk thus : “ That the said report be referred back to the said commissioners, for revisa! and correction, by awarding to Maria Mooney by name, the value of her life estate, in one-third of the property belonging to the estate of Thomas Mooney, deceased, &c., and by reducing the sum awarded to the estate of said Thomas Mooney,, to such amount as may remain, after the value of such life estate, &c., shall have been deducted. Also, that the said commissioners be at liberty to correct their report, by stating therein

p. 619

that, before the completion of their said estimate, &c., they obtained from the corporation, &c. profiles and plans of the adjacent streets, as to the elevation or depression thereof, &c. ; and it is further ordered, that, in all other respects, and as to all other parties, the said estimate and assessment be and the same is hereby confirmedSee 19 Wendell, 678, 686, 698.

Grim, contra, offered affidavits showing the impolicy and injustice of granting the prayer of the petition.

By the Court, Co wen, J. If the corporation have any right to discontinue, it is the same as that of any other actor in a legal suit or proceeding. A plaintiff may, of course, and at any time before verdict, or some step in nature of a verdict, withdraw and be nonsuited ; and even after verdict the defendant cannot compel him to proceed, unless he have acquired some vested right, which will be affected by allowing the plaintiff to stop short with the verdict. He can not be questioned on account of the prejudice which a discontinuance may occasion. The right of the corporation in street cases is not distinguishable in this respect from their right as plaintiffs in an ordinary suit. Courts can not inquire into the expediency of their exercising the right: or, if they can, they have no legal power to forbid its exercise. The affidavits are excluded.

Counsel were then heard upon the right of the corporation to discontinue, at so late a stage in the proceeding.

C. O’Connor and J. JVPKeon, for the corporation.

J). Lord,jun., and S. Stevens, contra.

The cases heretofore decided by this court and the court of chancery, leave it quite clear that individuals acquire no vested right under these street proceedings and therefore can not insist that the corporation shall go on, until the final confirmation of the report of the commisioners of estimate and assessment, Kent, Ch. in the Corporation of N.

p. 620

Y. v. Mapes, 6 Johns. Ch. Rep. 49 . Matter of the application of the Mayor, &c. relative to Third street, 6 Cowen, 571. Hawkins v. The Trustees of Rochester, 1 Wendell 53 . The People v. Brooklyn, id. 318 et sequitur, and other cases there cited. Matter of Canal street, 11 id. 154 . This view accords best with the language of the statute under which the proceedings take place. 2 R. L. of 1813, pp. 413, 414. By that act, so often as this court shall be dissatisfied with the report of the commissioners, it is to be referred back for revisal and correction ; and on the final confirmation of the report, the corporation become seized ; and, according to the cases, the corresponding rights of others vest.

In the case at bar, there has been no final confirmation, within the meaning of the act. The whole report was referred back as the statute requires it should be until we should be satisfied with it. The only difficulty raised is based on the concluding language of the rule, which declares, that the report is confirmed in all respects, excepting two particulars, wherein the commissioners were directed to make corrections. That, however, was clearly but another mode of expressing the opinion of the court, for the benefit of the commissioners and parties. It could not alter the legal effect of the reference, which was of the whole report; and indeed left the whole open for possible revisal. The confirmatory language in which the rule has been thought convenient, as indicating our approval of a certain portion of the proceedings, and the word approved might have been more apt than confirmed; but the legal result is the same. Unless specific errors are pointed out in some way, the whole ground might be travel-led over, and a thousand persons be heard by the commissioners, and again by the court, though, on the first hearing, we were satisfied with all except one or two particulars. Strictly speaking, there is in any one proceeding but a single report; and what are called second or third supplemental reports, are but parts or modifications of a legal whole. As such it passes by reference between the court and the commissioners. It can not be confirmed piece-meal. The whole proceeding is entire, like a suit

p. 621

at law ; and, in a legal sense, the whole is confirmed or discon' tinned at a single blow. This, too, seems to me the only method of considering the matter which is feasible and just to all parties. The report of estimate and assessment alone is what we have power to review. This has reference to and is dependent on a single improvement, which can not be split into fragments, in proportion as we may from time to time allow or disallow parts of the report; relative rights, claims and liabilities becoming vested and apportioned accordingly. „

It is true, that the proceedings on the report being entire and indivisible, a confirmation of part would be a confirmation of the whole, upon the general principle that a plaintiff or prosecutor can not split his claim. If he take judgment for a part, it is a judgment for the whole, and bars all proceeding by another suit or in the same suit for the residue. But the rule means a judgment or confirmation final in its legal character. Accordingly a judgment, which is in form one of nonsuit by a common magistrate, shall be held to be a nonsuit or a judgment final on the merits, and barring a second suit, accordingly as the justice had the legal right to render judgment with the one or the other effect at the time. Hess v. Beekman, 11 Johns. Rep. 457 . Elwell v. M'Queen, 10 Wendell, 519. These cases proceed on the ground that, on given circumstances, the law directs a certain judgment to be rendered; and that it can not be varied by the form of the entry. So in the case at bar, the law directed, on this court being dissatisfied, that the whole report should be referred back. It was so referred back by the rule, and the subsequent words of confirmation could not change the legal effect. Strictly the whole stood open. See per Lord Ellenborough, C. J., in Strachey v. Turley, 11 East, 200.

The motion to discontinue is granted.