Patterson v. Mayor of New York, 1 Paige Ch. 114

Patterson v. Mayor of New York

1 Paige Ch. 114 | New York Court of Chancery | 1828

The Chancellor Two questions arise in this cause, which it may be necessary to consider. 1st. Was there any irregularity in the proceedings complained of? 2d. If there was irregularity, has this court jurisdiction to stay the proceedings of the corporation by injunction? The cases of Leroy v. The Mayor, Aldermen and Commonalty of the city of New York, (4 John. Ch. Rep. 352,) and Mooers v. Smedley, (6 John. Ch. Rep. 28,) conclusively settle the principle, that this court is not authorized to review the proceedings on the merits.

The alleged irregularity is, that the commissioners altered *116the assessment and reduced the amount allowed to the complainant, without any written objections being put in by him, and without notice to the complainant to appear and oppose. On looking into the statute under which these proceedings were had, I am inclined to believe it was not intended by the legislature that any further notice should be given than the one which was published in this case. In the assessment and appraisal of damages in these street cases, what is allowed to that class of persons whose property is taken for the improvement, is to be charged upon another class whose property is supposed to be benefitted thereby. The necessary result of this is, that if any one objects to the amount allowed to or assessed upon himself, the commissioners cannot alter that allowance or assessment without making a corresponding change in relation to some or all of the others.

The statute directs the deposit of the copy of the report and public notice thereof to be given in the newspapers, and of the time and place of presenting the report to the Supreme Court for confirmation. If any person is dissatisfied, he may within ten days make his objections in writing to the commissioners; and if objections are made, they must review the assessment before presenting it to the court. The legislature *never could have contemplated the deposit of a new copy and a new notice to propose objections, as often as the commissioners reviewed their assessment. Such a construction of the act would be productive of great and unnecessary delay, and would be inconsistent with the provision which directs the notice of presenting the report to the court to be given at the same time with the notice of the depositing the copy for inspection, that objections in writing may be made thereto. The notice to propose objections to the report is a sufficient notice to those who are satisfied with the original report, to appear before the commissioners and oppose any alterations which may be proposed by the persons objecting. At the expiration of the ten days, they can apply to the commissioners and as*117certain whether any objections are made, and they will then be at liberty to be heard in opposition thereto. If the commissioners decide in favor of the objections, the original notice points out the time and place for the persons aggrieved thereby to appear before the Supreme Court and oppose the adoption of such amended report.

But if the proceedings were irregular in this respect, this court cannot interfere, unless the irregularity is such as to make the whole proceedings void. Probably this court would not suffer the corporation to pull down the complainant’s house, and dispossess him of his property under color of authority, where the whole proceedings were absolutely void. But if there is an irregularity which renders the proceedings voidable merely, this court has not jurisdiction to afford the relief sought. Persons other than the corporation have rights vested under the order of confirmation, which can only be divested by a direct proceeding, to annul the order of confirmation. The result of a reversal on certiorari would be to vacate the proceedings, so far as they had been irregular, and to place the parties in the situation in which they were before the order of confirmation. But the effect of a perpetual injunction to stay the defendants from pulling down the complainant’s house, would be to prevent the contemplated improvement, and at the same time leave the corporation liable to the other persons, in whose favor damages have been allowed.

*In this case the proceedings were, at most, voidable; they were not void.

If the complainant was entitled to notice to appear before the commissioners and oppose the reduction of his allowance for damages, he had a perfect remedy at law by certiorari. He was apprised of the alteration in August term, 1827; and if he had then applied for and obtained that writ, he would long since have had the decision of the proper tribunal on his case. He had no right to expect the corporation would pay the difference between the original and the amended reports. If he is entitled to the larger *118sum, it must be assessed upon those who are benefited by the contemplated improvement.

The motion for the injunction must be refused with costs.