97 N.Y.S. 503 | N.Y. App. Div. | 1906
■ This is a'n appeal by the city of Hew York from .an order of the Special Term of the Supreme Court denying the motion to confirm the second partial and"separate report of commissioners of estimate, and returning said report to said commissioners with certain directions, and for a further report in accordance therewith. It is claimed that said order is not appealable.
These proceedings were instituted on the petition of the commissioner of public works in behalf of the mayor, aldermen and commonalty of the city of'Hew York, pursuant to chapter 147 of the Laws of 1894, entitled “ An act to provide for the construction 'of a bridge over thá Harlem river in the city of Hew York.” •
. Section 4 of said act authorizes' the commissioner of public works; with the consent and Approval of the board of estimate and apportionment, and on behalf of -the city,- to acquire title in fee to any land which he may deem necessary for the purpose of
By an order of the Special Term, dated December 31,1895, commissioners of estimate were appointed to perform the duties required of them by law. During the progress of the proceedings the Legislature passed chapter 664 of the Laws of 1897, amending section 4 of the act of 1894, under which the' proceedings, were commenced, but no change was made in the provision above cited as to the procedure of the commissioners of estimate under the so-called, street opening laws. The taking of testimony commenced March 2, 1896, and the report of the commissioners was dated March 3, 1899. Thereafter, by Order of the Special Term, the report was referred back to the commissioners with certain directions, and they again reported in accordance with those directions under date of October 29, 1901. The order appealed from is dated February 25, 1904. The first Greater Hew York charter, by its terms, took effect upon the 1st day of January, 1898. The revised charter went into effect January 1,1902. To determine this question of appealability it becomes necessary, therefore, to consider what were the provisions of law governing street opening proceedings at the time of the passage of " chapter 147 of the Laws of 1894, authorizing the construction of the bridge, and as now existing.
The law governing the opening of streets in the city of New York (Revised Laws of 1813, chap. 86, § 177 et seq.) has been upon the statute books with substantially the. same provisions for upwards of ninety years, was embodied in the Consolidation Act (Laws of 1882, chap. 410, § 963 et seq.) and continued in the Greater New York charter (Laws of 1897, chap. 378, § 970 et seq.), and the revised charter (Laws of 1901, chap. 466, § 970 et seq). In many proceedings to acquire private property for public uses
On an appeal from an order confirming the report of commissioners, the Court of Appeals, in Matter of Commissioners of Central Park (50 N. Y. 493), held that the provisions of the Code of Procedure governing appeals to that court did not apply. Judge Allen said : “The Code is broad enough-to give an appeal to this court from the order confirming the report of the commissioners. It was made in a special proceeding, - and does afiect substantial rights;-and is final (Code, § 11, ,3
In Matter of Board of Street Opening, etc. (111 N. Y. 581), there was an appeal from an order confirming the report,of commissioners. The authority to establish the public place in question was given by chapter 451 of the Laws of 1884. ' The 2d section of that act provided that proceedings to acquire the title to the lands described should be taken “ in the manner prescribed (in) and subject to all the provisions of section nine hundred and fifty-five' of- chapter four hundred and ten of- the laws of eighteen hundred and eighty-two,” known as the Consolidation Act. Judge Gray said: “The procedure thereby prescribed has been-construed to preclude an appeal to this court from the order of the Supreme Court confirming the report of the commissioners. (Matter of Department of Public Parks, 85 N. Y. 459; Matter of Commissioners of Central Park, 50 id. 493.) The theory underlying this construction is that these proceedings form an independent and complete system especially created by the Legislature and not connected with or controlled by the provisions of the Code of Civil Procedure
• Therefore, prior to the enactment' of the Greater Hew York charter, it had been authoritatively determined by the Court of Appeals that the Street Opening Law wasA special and local law, complete within itself, and that the provisions of the Code were' not to be read into' it so as to allow an appeal to the Court of Appeals from a final order confirming the report of commissioners. It had also been settled that an appeal did lie from an order of the Special Term confirming the report of commissioners to the General Term. (Matter of Kingsbridge Road, 4 Hun, 599; affd. on the opinion of Davis, P. J., below, 62 N. Y. 645.) Presiding Justice Davis, reviewing the composition of the Supreme Court at the time óf the passage of the act of 1813 and-subsequent legislation, held that chapter 270 of the Laws of 1854, which provided in section 1 that “ an appeal may.be taken.to the General Term * * .* from any judgment, order, or final determination made at a Special Term * "* * in any special proceeding therein,” did operate to modify the effect of_the provision of section 178 of the original act which made the order at Special Term conclusive. He cited Matter of Canal & Walker Streets (12 N. Y. 406), where Gardiner, Ch. J., held'thatindependently of the "statute of -1854, the General Term acquired nó jurisdiction of the proceedings but that under it an appeal lay to the General Term from the Order of confirmation..
Section 990 of . the Consolidation Act (as amd. supra) has substan-. tially been re-enacted as section 986 of the Greater Hew" York
Here is a provision governing practice, especially providing for an appeal from the order confirming the report of commissioners. Though not in the law at the time of the commencement of the proceedings,, it was enacted during their continuance and was in force at the time the report was made, at the time the order appealed from was entered and is in force at the present time. Being a provision respecting practice it is to be applied to the case at bar. The appellant claims that section 1356 of the .Code of Civil Procedure applies. That section provides that “ an appeal may be taken to the Appellate Division of the Supreme Court from an order affecting a substantial right, made in a special proceeding at a Special Term or a Trial Term of the Supreme Court.” But section 1361 of the said Code provides that “ the proceedings upon an appeal, taken as prescribed in this title,
The appeal should be dismissed, With ten dollars costs and disbursements to the respondents.
■ O’Brien, P. J., Laughlin and Houghton, JJ,, concurred.
Appeal dismissed, with ten dollars costs and disbursements to respondents, •
Code Proc. § 11. subd. 3.—[Rep
See Code Proc. § 11 et seq.—[Rep.
See Code Civ. Proc. § 190. et seq.— [Rep.
Laws of 1807, chap. 115.— [Rep.
Code Civ. Proc. chap. 12, tit. 5.—[Rep.