91 N.Y.S. 987 | N.Y. Sup. Ct. | 1904
The petitioner seeks to obtain the appoint-. ment of commissioners of estimate and appraisal in proceedings to acquire certain real estate for the purpose of reconstructing or extending the Manhattan terminal of the’ Brooklyn bridge. Answers have been interposed on behalf of various owners of property sought to be acquired and the issues raised by such answers have been tried and the matter now is presented for decision upon the petition and answers and upon the record of such trial. The proceeding is brought under chapter 712 of the Laws of 1901, sometimes designated as the McCarren Act, which authorizes and provides for the reconstruction or enlargement of the Manhattan terminal of the Brooklyn bridge. Fumerous objections are raised on behalf of different property owners, the first of which is that the act is unconstitutional in that, being a local act, it nevertheless authorizes corporations, with the consent of the commissioner of bridges, to lay down railroad tracks in violation of section 18 of article III of the State Constitution, which prescribes that “ The Legislature shall not pass a private or local bill in any of the following cases: * * * Granting to any corporation, association or individual the right to .lay down railroad tracks,” and also that “ The legislature shall pass general laws providing for the cases enumerated in this section, and for all other eases which in its judgment may be provided for by general laws. But no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad be first ob
Another .objection urged is that it is not shown' that there has been any attempt to acquire the property by purchase, as provided by section 1436 of the Greater New York charter. Even if the provisions of that section were applicable to the present case there is no requirement contained therein that an attempt shall be made to reach such agreement, but a mere conferring of power and authority to make such an agreement, followed by this language: “ If no such agreement is reached, or if any such agreement does not include the whole of the lands and interest therein the said board shall direct the corporation counsel to institute proceedings for the condemnation of such lands and interest,” etc. The principle applicable to the situation is stated by Lewis in his treatise on “ The Law of Eminent Domain, as follows: “ The matter of requiring an attempt to agree rests merely in the discretion of the Legislature, and a statute is not invalid because it does not require it. Of course, 'if the statute does not require an attempt to agree, none is necessary, and inability to agree need not be alleged or shown.” 2 Lewis Em. Dom. 744. The cases relied upon in the various briefs in which this point is discussed were decided upon statutes quite different in phraseology from that now under consideration. In Dyckman v. Mayor, 5 N. Y. 434, for instance the words of the statute (Laws of 1834,
Ordered accordingly.