In re Broadway Widening

63 Barb. 572 | N.Y. Sup. Ct. | 1872

By the Court, Learned, J.

The general term, before which this matter came, was composed of one of the justices assigned to the general term in the first department and two justices from another district. The two other justices assigned to the general term in the first department were, by reason of interest, incapable of sitting on the appeal. The appellant objected that under section 10, chapter 408, laws of 1870, the appeal must be sent to some other department.

First, In construing such a statute, its general meaning is to be considered. The object of the legislature was to provide a court competent to hear appeals in every case. Section 4 of the same act provides for the calling in of other justices. And, as all the justices of the Supreme Court have co-ordinate authority throughout the State, the statute referred to is only an assignment of some to a special' duty. Xone of the justices actually holding this general term were incapable of sitting on this appeal. It seems to be an unreasonable construction to say that because two justices who are not holding court are incapacitated from acting, therefore the three who are holding court, and who are not interested in the matter, shall not act. It can hardly make' much difference whether the appeal goes to another department, or another department comes to the appeal.

Second. The next objection is that the report was signed by only two of the commissioners. The case of Water Commissioners v. Lansing (45 N. Y. 19,) holds that in the case then under consideration, all of three commissioners must have been present when they rendered their decision. The case arose on the language of chapter 177, laws of 1856, as amended by chapter 744, laws of 1868. Those laws do not contain the peculiar provision, found in the act of 1813, under which the commissioners were appointed in this case. That act expressly authorizes two of the commissioners to act, and declares that their acts shall be as valid as the acts of all.

It is urged by the appellant that this provision is abrogated by the constitution of 1846, art. 1, sec. 7. That section requires compensation to be ascertained by a jury, or by not less than three commissioners. But in the case of Cruger v. H. R. R. R. (12 N. Y. 190,) it was held that, notwithstanding this constitutional provision, the legislature might authorize a decision by a majority of the jury appointed in such cases. And if the legislature can authorize a majority of a jury to decide, why can they not authorize a majority"of the commissioners to do the same thing? The cases are so nearly analogous, that we are bound by that décision. This, too, was the decision in the Church street case, (49 Barb. 458.) The circumstances were very different in the Beekman case, (1 Ab. N. S. 451,) in which a contrary rule might seem to have been adopted.

Third. An objection is made that all the proceedings are contrary to the fourteenth amendment of the constitution of the United States. This objection has been overruled in another case before the general term of this department, and it is not, therefore, necessary to examine it'here.

Fourth. The provision requiring the report to be made within six months was not complied with. But we agree • with the learned justice, whose order is appealed from, that this was to be deemed merely directory. It was not a matter of jurisdiction. The proceeding was properly in' the Supreme Court. The commissioners were only officers of the court, and the jurisdiction was not lost by the delay.

Fifth. An objection is taken that the provision in the fourth section of chapter 57, laws of 1871, by which, a majority of the new commissioners were required to be other than the former commissioners, was- unconstitutional. The ground is, that the constitution has confided the power of appointing commissioners to the court. And it is urged that the judge who made the appointment, construed the act as requiring him to appoint one of the former commissioners. It does not seem that the judge considered this imperative. Even if he did so consider it, an erroneous construction could not make the law unconstitutional. The law does not positively require the appointment of any one of the former commissioners. It excludes two of them from the appointment. Bow, the exclusion of two men out of all the competent inhabitants of the State (or, at least, of the city) cannot, in any reasonable sense, be construed as a violation of the constitutional provision giving the appointing power to the court. It is a most common practice to exclude from a jury one who has, as a juror, heard the casé tried before. If the statute had provided that no convicted felon should be appointed commissioner, would any one say that such a restriction was unconstitutional ? Constitutions are to have a broad, not a petty construction. (People ex rel. Potter v. Jackson, 47 N. Y. 375. People v. Fancher, not reported.)

Sixth. It is objected that the commissioners have adopted a new area of assessment. The act of 1871 authorized the court to vacate the order of confirmation, and to refer the matter back to commissioners. It directed the commissioners to amend and correct said report, or to make a new assessment, in whole or in part, as the court should direct. The order granted April 3, 1871, vacated the order of confirmation, and directed the new commissioners to amend and correct said report, and to make a new assessment in whole. The act further authorized the commissioners, in making such corrected or new assessment, to assess any and all property which they deem benefited, and repealed the former limitation. Whatever then the language of the order was, the act is plain. The commissioners could go beyond the former area.

Seventh. It was. objected that no notice was given of the motion for Mr. Wood’s appointment. The court had acquired jurisdiction of the proceedings by the original publication of the notice. The act of 1871 authorized the court to refer the matter back to new commissioners. This was to be done on the vacating of the former order of confirmation upon a five day’s notice. (§ 6.) The court having under this act appointed commissioners, and one of them having declined to act, it seems plain that the same court had power to supply his place. Want of notice could be only an irregularity.

Eighth. As to the objection that the land of one of the appellants was disproportionately assessed, the court cannot entertain it. That was a matter for the commissioners. (Central Park, 16 Abb. 56.)

ISTinth. The appellant Sacchi, a lessee of certain premises, claims that he should be allowed for certain damages and loss of rents and profits arising out of his sub-letting. It is not disputed that the value of the lauds was awarded to the landlord, and the value of the buildings thereon was (according to the provisions of the lease) awarded to Mr. Sacchi. This, then, makes the total value of the property. When the city pays for the laud all that it is worth, and for the buildings all that they are worth, then, certainly, nothing more can be asked.

[First Department, General Term, at New York, November 4, 1872.

Among the papers on the appeal is what is called a minority report. To prevent misapprehension we may say, in passing, that we do not think any such paper can properly come before the court. There can be only one report, and that is the report of the whole, or a majority, of the commissioners. It may be doubted whether one who is only assessed and whose property is not taken, is in a position to assert several of the objections above mentioned. But we do not deem it necessary to decide that point.

The order appealed from should be affirmed, with costs.

Leonard, Learned and Danforth, Justices.]