33 N.Y.S. 594 | N.Y. Sup. Ct. | 1895
This motion is made for the appointment of commissioners of estimate and assessment in the above-entitled proceeding. Upon the hearing of the motion, an objection was made on the part of a property owner affected thereby that the court was without jurisdiction, in that no action had been taken by the common council laying out said street. It is conceded that no such action has been taken. The counsel to the corporation contends, on behalf of the city, that no such sanction is required, but that exclusive jurisdiction in that regard is vested in the board of street opening and improvement. The learned counsel for the respondent, however, claims that the authority of the board of street opening and improvement is still subject to the action and approval of the common council, and that no new street can be laid out in the city of New York without the affirmative action of that body. In support of this claim, attention is called to section 94 of the New York City Consolidation Act of 1882. That section reads as follows: “Section 94. No new street shall hereafter be laid out in the said city except with the approbation and permission of the mayor, aldermen and commonalty, in. common council convened; and if any street shall be laid out without such permission, it shall be lawful for the said mayor, aldermen and commonalty, by by-law or ordinances, to direct the same to be stopped up, and all buildings adjoining thereto to be removed by the proprietors or occupants within such times and under such penalties as they shall think proper.”
Section 955 of the Consolidation Act constitutes the board of street opening and improvement, and, as originally passed,
If section 94 of the Consolidation Act above quoted had been intended primarily to confer jurisdiction upon the common council in reference to the laying out of new streets, it would,
Considering these statutes together, it thus becomes quite plain that section 10 of the act of 1803 neither conferred nor was intended to confer any power upon the common council in reference to the laying out and the opening of streets and highways within the city, as such jurisdiction already inhered in that body, and had been possessed by it for more than a century before the act in question was passed. The section must, therefore, be construed, as has already been said, solely as a prohibition against any person or persons undertaking as a matter of individual enterprise to lay out streets without the
Without attempting to go over the history of legislation on the subject of laying out streets in that portion of the city which includes One Hundred and Thirty-sixth street, it is
Another circumstance of great force in construing the section is found in the fact, shown by the affidavits before me, that while the board of street opening and improvement has exercised the powers so conferred upon it in reference to the city south of Fifty-ninth street since 1871, and in reference to the portion of the city between Fifty-ninth street and One Hundred and Fifty-fifth street and south of the Harlem river since 1884, and has in each case published the above notice and laid its. proposed action before the common council, in no case has the common council passed any resolution or ordinance in relation thereto, or assumed to take any action thereon. It is a well-recognized rule of statutory construction that a long continued course of action by public officers under a statute is entitled to great weight with the court in construing it. In the case of Matter of Washington Street & Park R. R. Co., 115 N. Y. 442, Peckham, J., says (p. 447): “ Such acquiescence and recognition on the part of the officers of the government are of very considerable, if not of controlling, weight in the interpretation of a general act of the legislature relating to public objects like the one under discussion. Easton v. Pickersgill, 55 N. Y. 310 ; People ex rel. Williams v. Dayton, Id. 367.”
Streets have been laid out and opened under the direction of the board of street opening and improvement for many years past, and large sums of money have been expended by the city therefor. If the construction contended for by the counsel for the respondent is correct, the consequences of proceeding without the consent of the common council in all these cases would prove to be most serious ; and while this is not a sufficient reason for refusing to give to a statutory provision the meaning which it plainly calls for, it is sufficient in mattei's of doubtful construction to turn the scale in favor of the practical construction which the statute has received from those who are charged by law with its execution.
In the present case it cannot, at best, be claimed that the
Motion granted.