102 A.D. 181 | N.Y. App. Div. | 1905
The facts are not controverted. On the 8th day of September, 1903, a map signed by the president of the park board of the city of Rochester was made, showing the property in question, and was filed in the office of the clerk of Monroe county and also in the office.of the clerk of the city of Rochester, pursuant to a resolution
Chapter 193 of the Laws of 1888 created the board of park commissioners of the city of Rochester, and, among other things, authorized it to acquire property for public parks, parkways and approaches thereto, by condemnation proceedings, and provided a complete method of procedure in that regard. Such procedure is provided for in sections 4-14, both inclusive, of said act. By chapter 95 of the Laws of 1890, the Condemnation Law, so called, was enacted, which is title 1 of chapter 23 of the Code of Civil Procedure, commencing at section 3357 of said Code, as since amended. Section 3359 provides : “ Whenever any person is authorized to acquire title to real property for a public use by condemnation, the proceeding for that purpose shall be taken in the manner prescribed in this title.” It is urged that such Condemnation Law superseded and in effect repealed parts of the Park Act of the city of Rochester which assumed to prescribe the method of procedure in condemnation cases. It will, however, be observed that the repealing clause, section 3383 of the Code of' Civil Procedure (as amd. by Laws of 1890, chap. 247), excepts “ such acts and parts of acts as prescribe a method of procedure for the condemnation of real property for public use as a highway or as a street, avenue or public place in an incorporated city or village.” It seems to me clear that a park is a “public place” within the meaning of that section and that, therefore, the Park Act, which authorized the condemnation of property for parks in said city, was not repealed by the Condemnation Law. But it would seem that if there was any doubt as to the proper construction to be given to the repealing section and as to the intention of the Legislature in that regard, it is set at rest by the Riley Triangle Act, being chapter 354 of the Laws of 1903, which provides :
The language of that section clearly refers to the methods prescribed for the condemnation of property set forth in the Park Act. I think there can be no doubt, when the act of 1888, the provisions of the act to which attention has been called, and the act of 1903 are considered, that the Legislature intended that the act of 1888 should be followed by the park commissioners of the city of Rochester in acquiring property for park purposes by condemnation proceedings.
Appellant’s counsel next urges that chapter 354 of the Laws of 1903 is unconstitutional because, while it authorizes the acquisition of the premises in question, to wit, the Riley Triangle, by condemnation proceedings, in accordance with the provisions of the act of 1888, it provides that the cost of said lands shall not exceed the sum of $30,000. It seems to me clear that such provision does not nullify the act by in any manner prohibiting the commissioners of appraisal from awarding the just compensation for the property taken. The only effect of the limitation is to prevent the city of Rochester from acquiring said property in case its value exceeds $30,000. It is urged that such limitation, the act having been introduced in evidence, would necessarily affect the award of the commission. As we have seen, no question is made upon this appeal that the award was inadequate. The commissioners were charged with the duty of ascertaining and reporting the value of the property, and there" is nothing before us to indicate that the award made by them did not fairly represent its value. If they had found that its value was more than $30,000 the city of Rochester would have had to abandon the proceedings, but having found that it was less than the limit specified in the statute, we see no reason for holding that the limitation affected the validity of the statute or of the proceedings taken thereunder.
As we have seen, personal notice was not served upon the owners
We think that under those authorities the notice prescribed by the act in question complied with the requirements of the Constitution.
It is urged, however, that even if the Park Act, so called, was in force, it was not followed in this proceeding. It is objected that the common council did not declare its intention to take the property at its next regular meeting after the filing of the map, as directed by section 4 of the Park Act. It seems to me that it is a perfect answer to that criticism and to the others of like character which appellant’s counsel makes, that upon the hearing before the commissioners and when the owner, as appears by the search, Hector McLean, the father of the appellant, appeared, no such objection was raised. So far as shown by the search he was the owner; he and his daughter, the appellant, resided together upon the premises; they gave evidence as to its value. A Mr. Jordan, who at all the times mentioned was the appellant’s agent, was one of the witnesses called for such purpose, and no suggestion was made that any defect in the proceedings, such as is now urged, existed. As an original proposition, and especially under the circumstances of this case, it seems to me that the contention of the appellant, that the intention of the common council to acquire the premises by condemnation proceedings was prematurely declared, ought not to prevail.
There is no merit in this appeal. The notice of the proceedings was given as provided by the statute. The apparent owner, and as shown by the search, appeared by the same counsel who now appears for the appellant, raised no objection to the form or manner of procedure until after the award was made, and apparently satisfied that upon the evidence he cannot successfully maintain that such award was inadequate, he seeks to overthrow the proceeding by reason of technical objection. It is apparent that the appellant, who, it appears, was the owner of the premises, was fully conversant with.
It follows that the orders appealed from should be affirmed, with costs.
All concurred.
Orders affirmed, with ten dollars costs and disbursements.