40 Barb. 551 | N.Y. Sup. Ct. | 1863
In the view which I shall take of the questions involved in this action, it will not be necessary to consider the power of the legislature to pass the law under which the proceedings for widening Fourth avenue in the city of Brooklyn have been had; nor to examine at any length the 8th finding of the. judge, to which the defendant has taken exception that the words “ amounts paid for damages to buildings” were erased, and “ the amounts paid for buildings” were written in the report of the commissioners after it was signed and filed for confirmation arid without the authority or direction of the commissioners, and subsequent to the confirmation thereof by the court. The principal question may safely be disposed of upon the authority of the commissioners to dispose of the building in dispute to the defendant, in the manner which he claims in his answer they have done.
Horace B. Fletcher, the plaintiff’s mortgagor, was the owner of the lands and premises mentioned in the complaint, and on the 17th of February, 1859, he, together with Olive Jane his wife, conveyed them to the plaintiff by mortgage to secure the payment of $3500, with the interest. Upon the lands there was a dwelling house, consisting of a main building upon the street, and an extension united with the main building, which extended in the rear ; which extension was a frame filled in with brick, cellar and basement, with a raking cornice around the main building and extension. This extension, the witnesses say, might be used and moved back and attached to another building, and was of the value of $600. These buildings, at the time of executing the mortgage, constituted a part of the plaintiff’s security. The act of the 17th of April, 1861, to amend the act for the widening of Fourth avenue in the city of Brooklyn, provided that there should be added to the avenue, on its northwest side, .fifty feet from its intersection with Flatbush avenue to Carroll street, and forty féet from Carroll street to the city line at or near 60th street. The greater portion of the main building upon the
If the proof taken at the trial established certainly and positively that Horace E. Fletcher accepted and received the sum awarded to him by the commissioners in full payment and satisfaction and as a compensation for the lands and for the buildings upon the lands taken, as well as for those upon the adjoining lands, as expressed in the receipt signed by him (which I think it does not establish by any means) I do not see how it could affect or impair the lien of the plaintiff. He was not a party to or present at the transaction, and Mr. Abraham Lott was his attorney to deliver the release and for no other purpose. He gave no assent, and did nothing which can be construed into an assent that Fletcher’s receipt should have the effect which Boyle claims for it. So far from that, he gave the commissioners express notice, in the release and in the written certificate, that he looked to and retained his lien upon the land not included within the lines of the avenue as security for the payment of the mortgage debt. This was enough in itself to dispose of all claim which they or Boyle, who claims from them, could have to the building outside of the line of the. avenue. Let us look, however, for a*moment, at the nature of the proceedings under which the lands were taken for the avenue, and the powers of the commissioners under them. The act of the 17th of April, 1861, and that to which it was an amendment, was an exercise by the legislature of the right to resume the'posesssion and the - ownership of private property for the public use. The law of eminent domain extends to lands needed for the public use, and no further. Private property may be taken by the state, and the title of the owners divested for this purpose, and for no other. Within this limitation the power of the legislature is indisputable, but further than this it cannot go. The use to which it is to be appropriated must be a public use. The law was so far relaxed by the constitution of 1846 as to allow private roads to be opened through private prop
The judgment should be affirmed with costs,
Brown, Scrugham and Lott, Justices.]