158 N.Y.S. 289 | N.Y. Sup. Ct. | 1916
Upon presentation of plaintiff’s petition asking for a judgment of condemnation of defendants ’ premises for flood abatement purposes, and the appointment of commissioners to ascertain what compensation should be paid defendants for the taking of said lands, the defendants filed many objections to the constitutionality of the act of the legislature authorizing such proceedings, and by stipulation in open court it was agreed that such objections should be disposed of upon the trial of the issues to be raised by defendants ’ answer. Whereupon defendants answered, denying all the allegations of the petition, and alleging as a defense all of the matters set forth in the objections theretofore filed.
The legality of every step taken by the plaintiff to take possession of defendants’ lands is seriously challenged, necessitating a careful examination of both law and facts.
The petition alleges that the plaintiff is a domestic corporation duly organized and constituted pursuant to chapter 717 of the Laws of 1915. The answer denies such allegation, and does not contain ah affirmative allegation that plaintiff is not such a corporation. Plaintiff contends that by virtue of section 1776 of the Code of Civil Procedure the mere dehial of the allegation in the petition does not require it to prove its corporate existence. Inasmuch as section 3365 of the Code of Civil Procedure permits a landowner in condemnation proceedings to deny any material allegation of the petition^! was held by the first department, in Matter of Broadway and Seventh Avenue R. R., 73 Hun, 7, that such a denial was sufficient to require proof of the fact of the legal incorporation; that section 1776 of the Code of Civil Procedure did not apply to an answer in condemnation proceedings. In Long Island R. R. Co. v. Jones, 151 App. Div. 407, it was held by the second department that section 1776 of the Code of Civil Procedure did apply to pleadings in condemnation proceedings. Each of these cases involved the precise question here presented. Both decisions can not be right. Under the decision of the Appellate Division of the second department the plaintiff was not compelled to prove its corporate existence, while
• The petition alleges that the plaintiff has been
The petition states that “ The public use for which defendants’ premises are required are as follows : The opening of the channel for the passage of the Allegany river, the drainage of low lands, the erection and maintenance of dikes, retaining walls and berms, the excavation of earth, the disposition of spoil, and all necessary and proper purposes for the complete carrying out of the provisions of the statute for the straightening, dredging and making of the improvements to restrain and control the waters of the Allegany river and Olean creek within the corporate .limits of the city of Clean, the acquisition by the city of Clean of such lands and property as may be . necessary for such purposes, the use and disposition by said city of reclaimed and other lands derived from the making of such improvements or acquired for such purposes, and that the route on said premises is the only proper and feasible one for the carrying out of 'said improvements, that no other route is proper and advisable therefor.” The answer denies this allegation. Subdivision 3 of section 3360 of the Code of Civil Procedure requires that the petition must state the public use for which the property is required and a concise statement of the facts showing the necessity of its acquisition for such use. It is doubtful whether the foregoing statement in the petition complies with the statutory requirement. The control of the waters of the river and creek within the city of Clean may or may not be a public use. If it is
The petition alleges that all the preliminary steps required by law have been taken to entitle the plaintiff to institute these proceedings. The allegation of the petition is in the language of the statute, and while it is a statement of a conclusion to be drawn from many facts, yet the pleader had a right to adopt the language of the statute, and if a single step has been omitted the defendant can deny the general allegation and then compel the plaintiff to make proof of performance of every essential condition. Rochester R. R. Co. v. Robinson, 133 N. Y. 242. The denial of the defendants compelled the plaintiff to prove performance of every essential condition prescribed by chapter 717 of Laws of 1915 entitling plaintiff to condemn defendants’ land. The plaintiff did prove many things on the trial; it did not prove plaintiff’s corporate capacity; it did not prove that the three aldermen who conducted the special election of taxpayers held June 18, 1915, were appointed by the mayor for that purpose; it did not prove that the city clerk gave at least two weeks’ notice of such special meeting, by publishing and posting such notice; it did not prove that the plans and specifications were prepared or approved by the superintendent of public works; it did not prove that plaintiff had been unable to purchase the defendants’ premises and
The answer alleges that chapter 717 of Laws of 1915 is in violation of section 16 of article 3 of the Constitution, in that it is a local and private bill embracing more than one subject, and that the subjects are not expressed in the title. The title is “An act to provide for the straightening, dredging and making of other improvements to restrain and control the waters of the Allegany river and Clean creek within the corporate limits of the city of Clean; the acquisition by the city of Clean of such lands and property as may be necessary for such purposes; the use and disposition by said city of reclaimed and other lands derived from the making of such improvements or acquired for such purposes; the apportionment of the cost for such' improvement between the state and said city, and making an appropriation therefor.” The subject as thus expressed in the title is the control and restraint of the waters of Allegany river and Clean creek in the city of Clean by acquiring lands for such purpose and doing work. The bill provides the way and manner such subject is to be treated, handled and made effective. There does not appear to be any provision in the bill that is not directly connected with the subject expressed in the title. The duties of the superintendent of public works are to cause the work to be done. The creation, in the act, of the flood abatement commission as a corporation to acquire lands by purchase or condemnation for the city of Clean, defining the status of the corporation as the agent of the city, prescribing in extended detail its powers, giving such corporation power to borrow money upon the credit of the city when the taxpayers have voted therefor, simply speci
The answer alleges that chapter 717 of the Laws of 1915 is void as being within the prohibition of section 18 of article 3 of the Constitution, in that it is a local law for the drainage of low lands. While it may be true that some low lands may be drained by the completed improvements authorized by the act, yet such is not the purpose of the act. In the making of the improvements authorized for the purpose of controlling the river and relieving the high water conditions dangerous to public health and property, all lands remaining after the completion of the work belong to the city and may be used for park or other purposes. This legislation is far different from an act-for draining low lands. It is the passing of private bills for the draining of low lands that is condemned. The act in question is not for draining low lands. It is an act to
The answer alleges that chapter 717 of the Laws of 1915 is void, in that it is a private act creating a corporation not formed for municipal purposes. The flood abatement commission of Clean is formed as a corporation by the act. The duties and powers of the corporation are specifically fixed and determined; every function of the corporation relates to the municipality; there is no purpose specified in the act that the corporation is to fulfill except a municipal one; its very object is to provide means whereby the city of Clean may acquire and pay for real property for protecting public health and the property of. the municipality. While the corporation in protecting the municipality may also indirectly afford protection to private property, it can not be said that the purpose of its organization is different than expressed and defined by statute, and that is, a municipal purpose. The act is not void for this reason.
The answer alleges that chapter 717 of the Laws of 1915 is in violation of section 10 of article 8 of the Constitution prohibiting any city from incurring any indebtedness except for city purposes, in that it provides for the drainage of low lands owned by individuals and not by the city and that the expense thereof is to be met by a general tax upon all taxable property in the city. It is also alleged that said chapter 717 of the Laws of 1915 is in violation of the 14th Amendment of the Federal Constitution prohibiting a state from depriving any person of his property without due process of law, in that it provides for taking taxpayers ’ property for the private purpose of improving low lands of individuals by draining the same, and the taxation therein provided for is for a private purpose. A careful search through the act does not reveal any
The finding must be that the act does not violate the provisions of section 10 of article 8 of the Constitution or the 14th Amendment of the Federal Constitution.
The answer alleges that chapter 717 of the Laws of 1915 is in violation of section 9 of article 8 of the Constitution, in that it gives money of the state to the city of Clean for a private undertaking. The act does provide that the state shall pay one-half of the expense of making the contemplated improvements. Inasmuch, as it must be held that the control of the flood waters is for the public purposes hereinbefore referred to, it necessarily follows that state moneys are not given for a private undertaking, notwithstanding that as an incident to such undertaking private interests may be benefited.
The answer alleges that chapter 717 of the Laws of 1915 is in violation of section 10 of article 8 of the Constitution, in that by the terms of the act any judgment recovered against the people of the state or any employee thereof or against the flood abatement commission of Clean, or either of them, personally, growing out of the performance of their duties under the act, shall not be judgments against them personally, but may be enforced against the city of Clean as if said judgments had been recovered against it, thus making the taxpayers’ property liable for the acts of persons over whom the city has no control. The statutory liability thus created is but another way of expressing the liability of a principal for the acts of an agent performed within the scope of his authority. The mem
The answer alleges that the special election, held June 18,1915, for the taxpayers to vote upon the proposition ‘ ‘ Shall the sum of one hundred and fifty thousand dollars be raised by tax upon the taxable property of the City of Clean for the purposes of flood abatement, as set forth in chapter 717 of the laws of 1915 ? ’ ’ was ineffective to authorize the issuing of bonds of the city, for the reason that section 6 of the Municipal Law provides that a resolution proposing a funded debt approved by the taxpayers of the city ‘ ‘ shall provide for raising annually by tax a sum sufficient to pay the interest and the principal as the same shall become due.” It is provided by chapter 717 of the Laws of 1915 that the plaintiff and superintendent of public works shall not “ proceed with their duties under that act except to qualify, * * * unless or until a majority of the qualified # * * taxpayers voting on such proposition at a special meeting held as provided in this act shall vote in favor of said proposition.” Chapter 717 of the Laws of 1915 provided that the ballot to be voted by the taxpayers should read as above quoted. It is, therefore; • seen
In the case at bar the taxpayers have complied with the precise requirement of section 6 of the Municipal Law, and the bonds of the city issued by the plaintiff are not affected by the omission from the ballot of the language of that section.
For the defects in the proofs and petition the plaintiff must submit to a nonsuit and the petition will be dismissed.
Ordered accordingly.