137 N.Y.S. 825 | N.Y. App. Div. | 1912
Lead Opinion
This proceeding was instituted Under the provisions of the supplementary charter of the city of Yonkers (Laws of 1908, chap. 452), in which appellant’s land was acquired by the city for the purpose of straightening and widening one of its public streets. Upon the presentation of the report of the commissioners to the court for confirmation the appellant asked for a taxable bill of costs, together with an extra allowance Of Costs.'
The act under which the proceeding was instituted was entitled “An Act to supplement the general laws relating to the government of the city of Yonkers, and to revise and consolidate the local laws relating thereto,” and does not in terms refer to the “ Second Class Cities Law” or to the Condemnation Law. The act is supplemental, and provides (Art. 14, § 5) that “All acts and parts of acts inconsistent herewith are repealed so far as they affect the city of Yonkers; and the acts enumerated in the schedule annexed are repealed.” Section 103 of the Second Class Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap. 55) is inconsistent with the supplemental act and is, therefore, repealed. Under that section proceedings to acquire land for municipal purposes must be taken under the provisions of the Condemnation Law, while under the supplementary statute such a proceeding by the city of Yonkers is to be taken in accordance with the procedure therein specified and provided. This proceeding being taken under the provisions of chapter 452 of the Laws of 1908, and not under the Condemnation Law (Code Civ. Proc. chap. 23, tit. 1), the provisions of the latter statute do not apply. (Matter of City of Brooklyn, 148 N. Y. 107.)
The supplementary statute is silent as to costs and allowances in proceedings of this character, and I am of the opinion that it was the intention of the Legislature that section 3240 of the Code of Civil Procedure should not be repealed. The order must, therefore, be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term for the exercise of its discretion.
Hirschberg and Woodward, JJ., concurred; Burr, J., read for affirmance, with whom Thomas, J., concurred.
Dissenting Opinion
On the 8th of April, 1910, the common council of the city of Yonkers adopted an ordinance authorizing and directing the straightening and widening of the Saw Mill River road, a pub-
Unless statutory authority therefor can be found, the court may not award to a property owner whose lands have been ■taken for a public improvement through condemnation proceedings any costs or allowances for expenses. (Matter of Rapid Transit R. R. Comrs., 197 N. Y. 81, 110; Matter of City of Brooklyn, 148 id. 107.) If by any act then in force applicable to such proceedings such authority is conferred, the court is called upon to exercise its discretion in respect thereto. (Matter of City of Rochester, 181 N. Y. 322.) The act of 1908 above referred to is entitled “An Act to supplement the general laws relating to the government of the city of Yonkers, and to revise and consolidate the local laws relating thereto.” It became a law May 21, 1908, and was in force when these proceedings were, instituted. The said act contains full and complete provisions for instituting and carrying on proceedings for “ opening, * * * widening, altering, straightening, * * * public streets * * * and acquiring the land necessary therefor.” (Id. art.- 6, §§ 1-22, as amd. by Laws of 1909, chap. 365.) It is conceded that it does not in express terms authorize costs and allowances to property owners. I think that it goes further, and by its enumeration of the items which shall be included in the “ total cost ” of the proceedings (Id. art. 6, § 18), in which enumeration is an item' of “the cost and disbursements of the corporation counsel for and on
The prevailing opinion suggests that the provisions of the “ Uniform Charter of Cities of the Second Class ” were repealed by the later act relating to the city of Yonkers. If so, the appellant would be no better off, for certainly under that act there is nothing which, as in the case of Matter of City of
I think that the learned court at Special Term was clearly right in determining that it had no power to grant such costs and allowances, and I think that the order should be affirmed.
Thomas, J., concurred.
Order reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term for the exercise of its discretion.