95 N.Y.S. 245 | N.Y. App. Div. | 1905
On April 3, 1903, the board of estimate and apportionment of the city of New York, pursuant to section 970 of the Greater New York charter (Laws of 1897) chap. 378, as amd. by Laws of 1901, chap. 466), passed resolutions directing the corporation counsel to •take the necessary legal steps for the opening and extending of Avenue L in- the borough of Brooklyn, from the easterly side of NTostrand avenue to the westerly side of Flatbush avenue. The resolutions duly recited that the board deemed it for the public interest that the title to the lands and premises required for the opening and extension of the avenue should be acquired by the city; and the corporation counsel was therein requested to make application for the- appointment of commissioners of estimate and assessment, and to take the necessary proceedings in the name of the city to acquire title “‘wherever the same has not heretofore been acquired.• The application for the appointment of commissioners of estimate and assessment was made at Special Term in Brooklyn on June 25,1904, and on the twenty-sixth day of September following the order appealed from was made granting the motion for the appointment of the commissioners. It recites the fact that the motion was opposed- by the appellant, but the only paper submitted by the appellant on the motion was an affidavit praying
I think that the court was in error in holding, that the appellant’s deed was too late if tendered after the institution of the proceedings. It seems to have been in time if delivered before the appointment of the commissioners of estimate and assessment. The question is considered in Matter of Westminster Heights Co. (107 App. Div. 577), decided herewith, and need not be further discussed in this opinion. Nevertheless, it was the duty of the court to grant the motion for the appointment of the commissioners as there were other property owners interested who had not deeded to the city, and inasmuch as by the terms of section 992 of the charter (as amd. supra) the appellant, notwithstanding a valid and timely cession of its land to the city, would still be liable in the proceedings to an assessment for “ the due and fair proportion of the awards that may be made for buildings ” as a part of the expense of opening the residue of the street. It is true that the section of the charter last referred to further provides that after the making and acceptance of the conveyance no proceedings to open the lands so conveyed shall be taken or maintained, but it does not appear that the appellant’s deed was ever accepted, while every
The order should be affirmed.
Jenks, Rich and Miller, JJ., concurred; Bartlett J., not voting.
Order affirmed, with ten dollars costs and disbursements.