128 N.Y.S. 12 | N.Y. App. Div. | 1911
The commissioners in this proceeding were appointed on the 8th day of June, 1906, upon the petition of the city of New York to acquire for ferry purposes all the land between the southerly line of Thirty-ninth street and the southerly line of Thirty-eighth street and ■the westerly line of Second avenue and the pierhead line established by the Secretary of War in 1890, being 2,452 feet long and 264 feet wide, in the borough of Brooklyn. The land taken from the defendant, the.Nassau Electric Railroad Company, one of the appellants, consists of a strip of land under water 30 feet in width and 147 feet
The commissioners, in a memorandum, say that “ In estimating the damage resulting to parcels 2, 4 and 5, by reason of the taking of the thirty-foot strip from the northerly side, the Commissioners have regarded and considered said parcels as improved real estate consisting of lands and buildings, and the uses to which they were applied at the time of taking.” It was held in Matter of City of New York (190 N. Y. 350) that section 822 of the Greater New York charter was unconstitutional, because it permitted benefits to be offset against the value of the portion of property taken for public purposes, but the appellant does not raise this question, urging, on the contrary, that the commissioners have failed to make the award in harmony with this provision of the statute, and that the city, having elected to take advantage of the privileges of the statute, is not entitled to question the validity of the act. Taking the view that the commissioners have sought to comply with the provisions of the statute, we are of the opinion that they have overlooked some of the elements which should have entered into the calculation. If the damages to the property were to be con
We are equally persuaded that the order of May 16, 1907, granted nearly one year after this proceeding was instituted, and long after title to the various parcels had vested in the city of Mew York, could not operate to change the rights of the H. W. Johns-Manville Company, another of the appellants, who were the owners of parcels 3 and 5, and who were not served with notice of the effort to amend the proceeding. These appellants appear to have certain rights in the fee to the premises attempted to be affected by such order, and never having had an opportunity to be heard upon this point, they very properly ask the intervention of this court to protect them. It was held in County of Westchester v. Trustees L & W. Orphan House (140 App. Div. 188) that a judgment could not be amended to change the rights of property owners after the title had vested, and it would certainly be strange if the order now under consideration could change the rights of the appellants, or determine the ownership of the fee in the property taken. If the right of way to Second avenue was in private owners, as con
Jerks, P. J., Hirsohberg, Burr and High, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and proceeding remitted to new commissioners to dispose of in accordance with opinion.