49 How. Pr. 208 | N.Y. Sup. Ct. | 1875
My conclusions on this case are these: I. As to all portions of the Eleventh avenue laid down on the map of the commissioners of the Central park which belonged to or formed a part of the Dyckman estate, there was no dedication, for the reason that the- sale of the lands belonging to the said estate took place in the year 1868, while the map of the- said commissioners was not filed until f 1869 ; and that it is quite evident that, while- the representatives of Dyckman supposed that at some future time the Eleventh avenue would be extended, they did not intend to dedicate to the public use that portion of the land sold by them which would, in case the Eleventh avenue was extended, be embraced within the limits of' such extension., The question of dedication is one of intent (Holdane agt. Cold Springs, 21 N. Y., 474; Bissell agt. Central R. R. Co., 23 N. Y., 64), and the terms of sale under which the purchasers at the Dyckman sale bought, most clearly evince that the intention of the sellers was to vest in the purchasers full title to that portion of the land sold which would, when the avenue was extended, be embraced within
II. I do not think that the objections presented on behalf ■ of John Dailey can be considered, said objections not having been presented to the commissioners (Laws of 1839, chap, 209, sec. 5). The consent given by the corporation counsel that said objections be received, qualified by the condition that he waives the point, “ so far as he can do so, that the said objections were not submitted to the commissioners,” I find no authority in the statute for such waiver, and the consent merely amounts to a statement on the part of the counsel that, if the court wishes to examine into and consider objections upon which the commissioners have not passed, and which they might have passed on if said objections had been taken before them, he (the counsel) will interpose no objection.
It is sufficient to say on this point that the statute having designated the mode and manner in which a party must present his objections, such mode and manner must be pursued or the party cannot be heard.
III. After some hesitation, I have also come to the conclusion, that there was no dedication either in the case of Harris or Jones. The map of the commissioners of the Central park, under which this application was made, was not filed
When this matter came before me last year (July, 1874), I sent the report back to the commissioners, on the ground that certain lands for which only a nominal award had been made had not been dedicated to the public use, and that therefore the commissioners had erred in not making full or substantial awards to the owners of the said lands for the value thereof.
Ho part of the report was confirmed, nor was any question intended to be settled other than the question of dedication. Having determined that question adversely to the views entertained by the commissioners, the report was remitted to them, in the language of the opinion then delivered, in order that such awards might be made to the parties interested as in the opinion of the commissioners might be just and equitable.” The report having been amended by the commissioners is now presented to the court for confirmation, and various objections are urged against such confirmation.
. The chief and principal objection is, that the commissioners have erred in reducing some of the awards which were
It is contended by the objectors, in the first place, that no objections were taken to the amount of such awards, and that the commissioners, having once acted and passed upon the questions of damage to the propery, their power ceased, and they subsequently lost all jurisdiction over the matter.
This view might be maintained if the report had been, as has some times been the practice of the court, confirmed as to all other matters, except the question of whether the lands embraced within the limits of the extension of Eleventh avenue had been dedicated to the public use. In this case, no part of the report was confirmed. Having reached the conclusion that the alleged dedication had not been made, it became unnecessary to consider any other question, and the report was sent back to the commissioners without the court’s passing on any of the other questions. It now appears that the commissioners were, in consequence of the decision of the court as to the question of dedication, compelled to readjust and reduce several of the awards, for the reason that, on the assumption that the land required for that part of Eleventh avenue, which will be embraced between a prolongation of the lines of the old avenue, was dedicated to the public use, they had valued the twenty-five feet of land on either side, which was also required for the improvement, as actually fronting on an existing avenue. When the report came back for amendment, conformably to the decision, it was manifest that, to allow to the owners of these twenty-five feet, awards based on the assumption that such land fronted on an existing avenue, was unjust to those persons who were to be assessed for the improvement, and would be making to such owners a compensation far beyond the actual value of their property. I think that it was entirely within the power of the commissioners to make such reductions. There is nothing which prohibits commissioners of estimate and assessment from correcting manifest errors at any time before the final confirma
It has long been settled that the report of the commissioners will be regarded with the same favor as, and even with greater consideration than, the verdict of a jury on a mere question, of value, as the commissioners are authorized to act upon a personal view and individual knowledge (Matter of John and Cherry Streets, 19 Wend., 595; Matter of Central Park, 35 How., 265). The exceptions to-this rule are when the sum allowed is grossly inadequate and unequal as compared with other valuations, or where some wrong principle has been adopted- as to the amount allowed (Matter of Central Park, 35 How., 265; Matter of Central Park Extension, 16 Abb., 56). I discover nothing in this case which enables the objectors to invoke either of such exceptions to'the general rule.
It is also objected that no remonstrance or objection was filed by any person interested in the report in this matter, to the original awards, or either of them. '
If such remonstrance or objection were required, it is sufficient to say-that Mr. Powers appears to have objected to the said awards. But no such objection was requisite. As I have above indicated, no part of the report having been confirmed, neither the court nor the commissioners lost control over it, and it was perfectly competent for the commissioners to cor
It does not very clearly appear from the papers submitted on the argument only, whether the awards for the other lots, 6 A and 6|-, were made to “ unknown owners; ” but I deem it unwise, in view of the fact that this proceeding has been so long pending, to send the report back on that ground. It seems to me that it will be- better to confirm the report and let the parties claiming to be the owners of these lots apply to the court in another proceeding for the payment of the awards to them.
I do not regard the objection to Mr. Lewis’ competency to act as a commissioner in this proceeding as well taken. A-commissioner of estimate and assessment does not appear to me to be an officer within the meaning of section 114 of the charter. His election, therefore, to the- office of alderman did not disqualify him from acting as- a commissioner.
It is likewise objected that no assessment has been imposed by the commissioners upon Trinity cemetery for the alleged benefit resulting from the extension of the avenue. This, at first, struck me as a very serious objection, but upon reflection I have concluded that no error has been committed by
In view of the peculiar situation of the lands of this cemetery, and of the uses and purposes"to which they are applied, the commissioners may well have been justified in arriving at the conclusion that no benefit was derived by those lands from the extension of the Eleventh avenue; and that while it was within the power of the commissioners to subject them to assessment, there being no appreciable benefit derived from such opening, no assessments should be imposed. The cases of the Riverside Park, and of the Twelfth Avenue, cited by the corporation counsel, are in point in this connection. I find nothing in the case of the Buffalo City Cemetery agt. The City of Buffalo (46 N. Y., 506), which conflicts with the views above expressed. There the cemetery claimed an absolute exemption from assessment under the act of 1847, chapter 133, relating to rural cemeteries, and the court held that the general exemption from taxation and assessment did not include exemption from assessments for local improvements.
In that case the commissioners or assessors had determined that the lands of the cemetery were benefited by the improvement, and had assessed them accordingly. Here the commissioners not having assessed, must, I think, be deemed to have concluded that the cemetery derived no benefit from the opening of the avenue.
I find a brief, among the papers submitted, filed on behalf of Messrs. Parsons and Knapp. I do not find among the
The matter may stand over for two days, to enable the corporation counsel, and the attorney and counsel for these objectors to appear before the court and state the facts on this point.
On the 17th of April, 1875, an order was entered confirming the report.