49 N.Y.S. 119 | N.Y. App. Div. | 1897
It was provided by chapter 746 of the Laws of 1894, which took effect on the twenty-second day of May in that year, that certain pieces of land situate in the twelfth ward in the city of Hew York, and which were particularly described in the act by metes and bounds, “ or so much thereof as the commissioners to be appointed under the provisions of this act shall deem advisable to be acquired,” were thereby declared to be a public place and a public park for public use and public purposes. The statute proceeded to direct that an application should be made by the mayor to this court for
An application of the principles already established in cases of this kind will enable us without much discussion to dispose of the question presented upon this motion. Whenever the Legislature locates by metes and bounds lands to be taken for the public use, and the lands so taken are by the act itself declared to be taken for public use, by force of the act the particular property is appropriated for public purposes. In that case, all that remains to be done is to assess the value of the property so taken and the owner is entitled to receive compensation as of the time of the taking, (Matter of the Application of the Mayor, 99 N. Y. 569.) When, however, the Legislature, although describing the land by metes and bounds and directing that it shall be devoted to a public purpose, leaves uncertain what particular portion of the land is to be taken, but refers the question to commissioners, or other body of men, whose discretion is to be exercised upon the question so that it cannot be known whether any given piece of land is taken until the commissioners have acted, the land is not finally appropriated for public purposes until the commissioners have finally acted upon it in the manner prescribed by the statute. (Matter of the Department of Public Parks, 53 Hun, 280.) In that case, as it cannot be known until the commissioners have acted whether any particular land shall be taken or not, although the piece in question may be described in the act, the title of the owner is not interfered with, and it cannot be said that his land is impounded for the public use until the final determination of the body of men to whom the question whether it shall be taken or not, is submitted. Therefore, in such a case as that, no particular piece can be said to be taken until the commissioners have finally acted. The rule is well settled that the compen
But the commissioners refuse to allow compensation for this building, because the statute gave them authority to allow compensation for any buildings which might have been upon the land before the passage of the act, and contains nothing authorizing them to pay for buildings which were put up after the passage of the act, but before the land was finally appropriated. We do not think that this provision of the statute was sufficient to deprive La Maida of the value of his land on the 27th of February, 1895, the time when it was finally appropriated for public use by the action of the commission
The report must, therefore, be modified by adding to it the compensation to be given to La Maida for his premises, the sum of $2,500 as the value -of his building, and as modified, must be affirmed.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Report modified by adding to it the compensation to be given to La Maida for his premises, the sum of $2,500 as the value of liis building, and as modified affirmed.