People ex rel. Astor v. Stillings, 108 N.Y.S. 903

108 N.Y.S. 903 | N.Y. App. Div. | 1908

Clarke,' J.:

This is a writ of certiorari to review a determination of the change of grade damage commissioners, appointed finder chapter 537 of" the Laws of 1893, as amended by chapter' 567 of the-Laws of 1894 and chapter 747 of the Laws of 1905, in dismissing the relator’s claim for damages on the ground that they were without jurisdiction to try it. -

The determination ¿¡of the commissioners is reviewable by writ of certiorari. (Matter of Fitch, 147 N. Y. 334.)

The-relator was the owner of a parcel of land lying between River avenue on the east and Cromwell avenue on the west, and extending, from Sedgwick avenue, now East One Hundred and 'Fifty-third street, to East One Hundred and Sixty-first street, in the twenty-third ward of the city of Hew York. This portion of the city was formerly comprised within the limits of the town of JVIorrisania, Westchester county, which was annexed to the city on January 1,1874. (See Laws of 1873, chap. 613, §§ 3,18.) By chapter 841 of the Laws of 1868, certain commissioners Were authorized to lay out streets, roads and avenues in the town of Morrisania" of such width, extent, and direction and. of such grades as to them should seem most conducive to public good. They' were to cause maps to be made and filed in the office of the town clerk of Morrisania and in the office of the register of Westchester county. These maps were made final and conclusive as well to said board of trustees of the town of Morrisania as in respect to the owners and occupants of lands, tenements and hereditaments within the said town and' in respect to all persons whomsoever.-

Pursuant to this authority,, the commissioners duly filed a map on February 20, 1871, as the survey of Morrisania, Map No. 6, which covered the locus in quo, whereby the grades of both River and Cromwell avenues in.front of the relator’s premises were fixed. On the 30th day of August, 1889, a map was filed by the department of parks, known as Map No. 1033, and upon this map the grades of River and Cromwell avenues, wdiich had been established by Morrisania Map No. G, were elevated from six to nine and one-half feet which constituted the damage complained of. The question is, is a claim for such damages within the jurisdiction of the commissioners? The answer requires a careful consideration of the statutes. ,

Chapter 721 of the Laws of 1887 is entitled “ An act conferring certain powers upon the department of public parks in the city of New York relative to the twenty-third and twenty-fourth wards in said city.” It provides for two things.. It authorizes the department of public parks (a) to change the location, width, course, windings, lines, dimensions, grades and class of any street now or hereafter laid out in the twenty-third and twenty-fourth wards of said city, the title to which shall not have been acquired by the mayor, aldermen-and commonalty of the city of New York for the purposes of a public street at the time of such proposed change; (b) also td agree with the New York and Harlem Railroad Company upon plans for the depression of the tracks and changing the grades of the railroads of said New York and Harlem Railroad Company and carrying any streets in the twenty-third and twenty-fourth wards across, on, over or under said railroads, which plans when so agreed upon shall be executed and carried out forthwith by said railroad company at their expense, and the grades of the streets so agreed on for the crossing of said railroads shall be the established grades of said streets, and in furtherance of the powers hereby conferred to alter, amend ór revise any map or maps, plan or plans heretor fore or hereafter adopted by said department by authority of law and to make and file new maps or plans to the extent deemed proper in order to show such alteration, amendments and revision.

When the park department filed its map on the 30th of August, 1889, changing the grades of River and Cromwell avenues, the title to neither of said streets had been acquired by the city for the purposes of a public street. The city acquired title to Cromwell avenue on the 20th of October, 1897, and to'River avenue on the 8tli of July, 1895, so that when Map No. 1033 was tiled the department of public parks had, Under the provisions of chapter 721 of the-Laws of 1887, authority to change the grades of those streets which had been established by the Morrisania commissioners.

Chapter 537 of the Laws of 1893 is entitled “ An act providing for ascertaining and paying the amount of damages to lands and ■buildings, suffered by reason of changes of grade of streets or avenues, made pursuant to chapter seven hundred and twenty-one of the laws of eighteen hundred and eighty-seven, providing for the depression of railroad tracks in the twenty-third - and twenty-fourth wards in the city of New York or otherwise,” and provides as follows: “ Section 1. All persons owning lands, tenements- or hereditaments in One Hundred and Fifty-seventh street, formerly Prospect street, or in any other street or avenue in the twenty-third or twenty-fourth wards of the city of New York, who have sustained damages by reason of a change of grade of any street or avenue, which change was made in conformity with the provisions of chapter seven hundred and twenty-one of the laws of eighteen hundred and eighty-seven, * * *. or was brought about by reason of the grading of the Elton avenue, Railroad avenue'or Mel-rose avenue or otherwise, where such former grade had been duly established by competent authority according to law, by the board of trustees of the town of Morrisania, or otherwise, or where such grade had been otherwise established and had existed for twenty years prior to this act taking effect, shall be entitled to prove and recover the same from the mayor, aldermen and commonalty of the city of New York as hereinafter provided.” •

This act wras amended by chapter 567 of the Laws of 1894, which, among other things, added to the 1st section thereof this proviso : “ Provided, however, that as to lands or lands and buildings fronting on any street or avenue, except One Hundred and' Fifty-seventh street, the benefits under this act shall.be limited to the area within which grades are changed, as shown on any map tiled pursuant to • chapter seven hundred and twenty-one of the laws of eighteen hundred and eighty-seven.”

The commissioners dismissed the relator’s claim because it was their opinion that it was the intention of the Legislature in passing the original act authorizing their appointment (Laws of 1893, cha]). 537) only to compensate those suffering damages where grades were changed by the depression or changing of the railroad tracks, and that as it was, and is, conceded that the change in grade here complained of was not caused or occasioned by such depression of the tracks, they were without jurisdiction.

In People ex rel. Purdy v. Pitch (147 N. Y. 355) the Court of Appeals had these statutes under consideration. The commissioners had idade an award under and pursuant to the provisions of chapter 537 of the Laws of 1893, as amended by chapter 537 of the Laws of 1894, for damages to the relator sustained by her in consequence of the change of grade in streets in front of the premises owned by her. The comptroller having refused to pay the award, a writ of mandamus was issued, the General Term had reversed the order directing .its issue (87 Hun, 304), and an appeal, therefrom had been taken to the Court of Appeals. • The contention was made that the act of 1893 was in contravention of article 3, section 16, of the Constitution then in force which provides that no private or local bill which may be passed by the Legislature shall embrace more than one-subject'and that shall be expressed in the title. The court said: “ The act in question is, undoubtedly, local, and if it contains more than one subject it is within the condemnation of the Constitution. Its character is remedial and should be liberally construed. (People ex rel. Brisbane v. Zoll, 97 N. Y. 203.) The whole question necessarily depends upon the meaning that is to he given to the words, ‘or otherwise.’ If they relate to the depression of the railroad tracks authorized by chapter 721 of the Laws of 1887, and the depression of such tracks is the subject expressed in the title under consideration, then there is a reference to something not fully expressed in the title, and consequently there is a failure to comply with the provision of the Constitution referred to. But such is not our understanding of the language used. Changes of the grades of streets and avenues had been authorized and made in the twenty-third and twentyrfourth wards of the city, under the provisions of the Laws of 1887 and other acts, but no provision had been made for compensating the owners of lands abutting- upon such streets for the damages they had sustained under any of such acts. It was to afford relief in this regard that the aet.in question was .passed, and the subject expressed is unquestionably tire payment of the damages sustained. There is a limitation to the territory to which the ■ act- applies to the; twenty-third and twenty-fourth■ wards of the city. It also limits the damages :to- those "sustained by reason of the changes of grades .of streets and avenues.: 1 It particularly specifies the. changes of grades authorized by tlie law of 1887, hut does not limit the awarding of •damages to. the changes authorized by that' act, but includes changes ‘ otherwise ’ made pursuant to authority. This, it appears to us, is . the fair^readiugjmd the reasonable interpretation of the language ■used; and if we ..are' correct in this view, it follows' that but one subject is mentioned, and that is-expressed in the title.” :

It, therefore, follows that in the view of the Court of Appeals,, the. act of 1893 provided for damages in the twenty-third and twenty-fourth- wards caused by the change of grade of streets and was not confined to those caused by'.depression of nail-road tracks^ f or if so. construed, it would have held the act unconstitutional..

The court eliminated the depression of railroad tracks' as a jurisdictional element,. . The act of 1894 limited the.'powers of- the commission to. tlie'territory shown on any maps filed pursuant to chapter 721 of tlie Laws of 1887.' ' The city and the commissioners claimed that that reference was to those parts of the act of 1887 which .provided for agreement with the railroads for depression, of the tracks and filing of maps-in pursuance of those agreements, and say that but -two'' such- map's were 'filed, upon .neither of which appears thp property "made the subject of this claim. But as 1 have pointed out, the.act of, 1'887 was not confined 'to providing for the. depression, of railroad tracks, bht empowered the board of parks- to change-' the grades of the streets and avenues in the twenty-third and twenty-fourth wards of the city of Hew. York and to file new maps- showing such changes of grade wherever tire-, title to such ■ streets or aveimes had. not been acquired by the city at the time of the change of grade. - The inquiry is, therefore,' reduced' to thp question, was tlie'Map Ho. 1033 filed August 30, 1889, filed- under the provisions of charter 721 of the Laws of 1887. For if it was not,, it is clear that tlie commissioners had no jurisdiction.

Eliminating tlie question of tlie depression'for the. railroad tracks, • the city claims that this map was not filed under" chapter 721 of the Laws of 1887, because of the certificate thereon contained, which is the certificate of the president of the. park board, and reads as follows: “I, Waldo Hutchins, President of the Board of Parks-of the City of Hew York, do hereby certify, that this is one of three similar maps or plans with explanatory remarks, caused to be made by the Department of Public-Parks showing revised system of ave- . núes and streets * * * in the 23rd ward of the City of Hew York, the plan having been hitherto prepared and filed by said department and taken from file and amended as directed by the Board of. Street Opening and Improvement under authority of chaps. 577 and 721 of the laws of 1887,.said plans uptli explanatory remarks are hereby again certified and refiled as provided by said acts. Dated, Hew York, August 27th, 1889";” and the claim is made that, as the certificate mentions two acts,of 1887, the plan does not come within the purview of the Damage Commission Law, because it is not stated to be exclusively under chapter 721.

On the 26th of February, 1889, Mr. Chalfin, the topographical engineer, submitted to the park board for adoption a map or plan showing the proposed grades for streets, avenues, etc., and said: “ I inclose two resolutions for adoption, namely, first, to establish grades under Chapter 577 of the Laws of 1887.” He subsequently, on April 15, 1889, wrote: “ I herewith send you a form of resolution to take the place of the one inclosed with my letter of February 26th last, to change, fix and establish the grades of the avenues, streets and roads in that .part of the 23rd and 24th wards, * * *. The resolution to be adopted after the hearing prescribed by Chapter 721, Laws of 1887. The general character and extent of the contemplated change consist in • changing, fixing and establishing the grades of the avenues, streets and roads in the said part of 23rd and 24th wards, as shown on map dated February 26th, 1889.” On the same day the minutes of the board of public parks show the receipt from the topographical engineer of the map showing the proposed grades at the locus in quo. On motion, “ said map was ordered placed on exhibition and advertised in accordance with Chapter 721 of the Laws of 1887.” On May 22, 1889, the minutes show an affidavit of the clerk of the Oily Record showing the publication of the notices as required by law of the proposed changes in the streets, naming them, stating : “ The general character and extent of the contemplated change consist in changing, fixing and establishing the grades of the avenues* streets and roads in.the said part of the 23rd and 24th wards in pursuance-ox the provisions of Chapter 721 of the Laws, of 1887. A map showing the proposed change is on exhibition in - said office.” The -minutes of June 26, 1889, show the -following action of the board of parks: “Hesolved, that in pursuance of the provisions of Chapter 721 of the Laws of 1887 this board does hereby alter, amend and revise the maps or plans heretofore adopted by it, by authority of law, and change, fix and establish the grades of certain avenues and streets as shown on "a map or plan entitled * * *, dated New -York, February 26, 1889, and signed S. F. Chalfin, topographical engineer, * * '* and does hereby approve and adopt said map or plan; * * * and that the president of this board,be and he is hereby designated and directed to cause three similar maps or [dans tó' be made to be certified to by him, and to cause the same to be filed. * * * ” Thereafter the three copies were received from Chalfin ;. they' were filed in the register’s office .as No. 1033, and in the .park department and in the Secretary of State’s office.

The corporation counsel had, by letter of January 31, 1888, advised the park department that on the 25th day of June last, an act, chapter 721 of the Laws of 18S7, had been passed authorizing , the park department, among other things, to change the location, width and lines of any street then, or thereafter laid out in the twenty-third or twenty-fourth wards, title to which shall not have been acquired by the city for the purpose of a public street, avenue, etc., and stated that under this act he wás of the opinion' that “ the exclusive power to make changes of the character described in your letter is now vested by law in the Department of Parks and that the passage of that Act. nullified the resolution theretofore adopted by the Board of Street Opening and Improvement, it not having been carried into effect at the time of the passage of the Act referred to.”- .

So that it appears that the formal resolution of the park board and all the proceedings thereunder were,, expressed to he in compliance with chapter 721 of the Laws of 1887, and that thé veryletter relied upon by the city, the first letter of the engineer;, referring to chapter 577 of the Laws of 1887, was by him withdrawn and a pro-' posed resolution sent to the board by him, which was adopted, and that by some error the allusion to that chapter, as well as to the board of street opening and improvement, which, under the opinion of the corporation counsel, was divested of jurisdiction, crept into the certificate. I do not think that the formal action of the board can be in any way limited, altered or affected by extraneous, unwarranted words put into the certificate by the agent of the board directed to carry out its will.

Chapter 721 of the Laws of 1887 conferred authority upon the department of parks to file the maps showing the grades fixed by it. Section 42 of the Consolidation Aot (Laws of 1882, chap. 410), in force at the time, provided that “The head of the department of public parks shall be called the board of parks. Said board shall consist of four members.” Section 46 of the Consolidation Act provides that “ A majority of the members of a board in any department of the city government * * * shall constitute a quorum to fully perform and discharge any act or duty authorized, possessed by or imposed upon any department or any board aforesaid.”

The resolution, adopted by the^ unanimous vote, was the formal expression of the board of public parks in the exercise of the powers conferred upon it by chapter 721 of the Laws of 1887. Clearly the deliberate act of the entire board could not be affected by any act on the part of the president in the performance of a purely ministerial function of appending his certificate. “ It is a well-settled principle that public powers or trusts devolved by law or charter upon the council or governing body to be exercised by it when and in such manner as it shall judge best cannot be delegated to- others. * * * On-the other hand, a municipal corporation may appoint agents or give directions to subordinate officers to perform duties of a ministerial or administrative character.” (Birdsall v. Clark, 73 N. Y. 73.)

“ The report or certificate of an officer is evidence only of facts which by law he is required or authorized to certify.” (Board of Water Comrs. of Cohoes v. Lansing, 45 N. Y. 19; Tripler v. Mayor, etc. of N. Y., 125 id. 617, 622.)

Eor do 1 think that the reference in the certificate to an act which obviously did not apply would have any force and effect. Chapter 577 pi’ovided for action by the board of street opening and improvement. By chapter 721 the power to make new grades was lodged exclusively in the park board. Even if the map was filed'under chapter 577, it was also filed under chapter 721, and so came within the provisions of chapter 567 of the Laws of 1894. The Court'.of Appeals and this, court when considering this Damage CommissionAct have said that it was remedial in its nature and should be liberally construed. (People ex rel. Purdy v. Fitch, 147. N. Y. 355; People ex rel. Grout v. Stillings, 76 App. Div. 143; People ex rel. Fitch v. Lord, 9 id. 458.) The Court of Appeals deliberately rejected that interpretation of the act of 1893 which limited ■ it to damages for the depression of the railroad tracks, upon the ground that' to ■ so construe it would render it unconstitutional. Chapter 721 of the Laws of 1887 authorized the very thing which was done in this case, and I find no difficulty in concluding that the map in question, was filed thereunder. It had been' long on file when the remedial act was passed and the evidence establishes- that this is the only map on file showing the grades of streets or avenues in the territory covered by that map during the entire period that elapsed between the adoption of the • resolution of the park board referred to and the date'when that board’s jurisdiction over streets and avenues in the twenty-third and twenty-fourth wards ceased. ■

I am satisfied that the change of grade damage commissioners had jurisdiction.; that it was,error to dismiss the claim-; that the writ should be sustained, the proceeding reversed, the claim reinstated, and the board directed to proceed to determine the same, with costs.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Writ sustained and proceeding reversed and order directed as stated in opinion, with costs. Settle order on notice.