Matter of the Application of Cooper, Etc.

93 N.Y. 507 | NY | 1883

The proceedings in question were taken under an act for the establishment of a public market in the city of New York and the acquisition of land for this purpose by purchase, or failing in that, by commissioners of estimate and assessment, to be appointed by the Supreme Court. (Laws of 1880, chap. 191.) A petition setting forth among other things an inability to agree with the owners of the desired property upon the price to be paid for it, and asking for the appointment of commissioners of estimate and assessment for the purpose prescribed by the act, was presented to the court by the respondent after service of a copy thereof upon Collins, one of the persons whose property was affected. The record does not disclose any opposition by him, and moreover upon the argument before us it was stated by the respondent's counsel, that he not only did not oppose the application, but joined in it by petition in writing and under oath, praying that Benjamin P. Fairchild be appointed "as one of the commissioners." This was not denied by the appellant's counsel, and we find the same fact adverted to in the opinion of the Supreme Court. We have also been furnished with a certified copy of his petition. It may properly be considered. (Wines v. Mayor, etc., 70 N.Y. 613.) The appeal book shows that in pursuance of this application and notice, Fairchild was appointed as one of the commissioners and an order to that effect made December 13, 1880. The commissioners duly executed their office, and among other lands, appraised that of the appellant. He was dissatisfied with the appraisal and thereafter moved the Supreme Court to set aside the order of December 13, above referred to, and all proceedings subsequent thereto, upon the grounds, first, that the act of 1880 is unconstitutional because (1) the use for which the land is set apart is not a public use; (2) it does not provide for its acquisition by due process of law or for just compensation to its owners; (3) it is a local bill and grants to certain classes of persons named therein exclusive privileges. Second, that an attempt was not made to acquire his land by purchase. Third, that persons in whose names the proceedings are instituted do not bear certain specified relations to the city or some of its districts. His motion being denied, the same grounds are relied upon on this appeal.

It is obvious that these objections existed, if at all, at the outset of the proceedings, and when Collins as a property-owner was before the court they might have been presented in opposition to the application and motion which resulted in the order of December 13. If they had any merit and he intended to rely upon them, it was his clear right and duty to bring them forward at the first opportunity. But he was not bound to mention them at all. The second and third merely indicate a non-compliance by the moving party with certain statutory conditions (act of 1880, supra, §§ 1 and 2), and the first to constitutional defects in the statute. The provisions supposed to have been omitted were for the benefit of the property-owner. It is not necessary to consider the validity of the objections, for we agree with the learned counsel for the respondent that the conduct of the appellant at the former stage of the proceedings, and to which we have adverted, estops him from now entering upon the inquiry.

It is very well settled that a party may waive a statutory and even a constitutional provision made for his benefit, and that having once done so he cannot afterward ask for its protection. (Lee v. Tillotson, 24 Wend. 337; Embury v. Conner, 3 N.Y. 511; Cooley's Const. Lim. 181.) The appellant is in this position. He participated as an actor in procuring the order which he now seeks to set aside, and took his chance for a satisfactory valuation of his property for the purpose contemplated by the act. To that end there was not only acquiescence on his part, but intelligent and efficient dealing with the matter and consent to the order. By this consent he must be deemed to have made his election and should be held to it.

The appeal should, therefore, be dismissed.

All concur.

Appeal dismissed.