52 How. Pr. 140 | N.Y. Sup. Ct. | 1876
— By chapter 697 of the Laws of 1867, the board of commissioners of the Central park were empowered to lay out and close streets, avenues, roads and public squares or places within a particularly designated and described district of the city of New York, adjacent to and surrounding the park. This district included territory forming part of what was called the Bloomingdale road upon which the applicant claimed that he owned property which was injured by the action of the commissioners in closing that road. He swore positively to his title to the property, and his statements upon that subject were not otherwise denied than by an answer of the board, verified by one of its members, denying knowledge or information sufficient to form a belief whether such statements were true. That form of denial for the purpose of meeting the averments of a positive affidavit upon a special motion, really amounts to nothing. The Code has allowed it in an answer or reply in forming issues of fact by way of pleading, but it has not been sanctioned or allowed for any other purpose. The applicant’s affidavit may very well be literally true, and, at the same time, the person verifying the answer may have had no knowledge or information whatever upon the subject. For that reason the answer does not tend to discredit the statements made in the affidavit, and it must therefore be taken to be presumptively correct as to the applicant’s title.
His affidavit is not so positive as to the existence of the Bloomingdale road in front of his premises. The statements-are made upon his information and belief, that it was laid out over 100 years ago, and that it was afterward kept open and continued as a public highway of the city of Hew York, to and including the year 1867. But the uncertainty of this statement was so far fortified by legislative acts, recognizing the existence of the road, as to render it entirely worthy of reliance. Both together left no doubt as to that fact (Laws 1864, pp. 942, 943; Laws of 1838, chap. 223, sec. 3). How it first became a public road does not clearly appear in this case, but
The applicant stated positively in his affidavit that closing the road had depreciated the value of his premises, and the answer of the assessors was that neither of them had any knowledge or information sufficient to form a belief that such was the, fact. This denial, as already stated, in no way impaired the effect of the applicant’s positive statement as to the fact. As matter of mere evidence, the circumstance that ope person does not know or is not informed concerning a fact positively affirmed by another, is too slight in its effect to present even a conflict between their statements. It has been allowed in pleading to create an issue upon matters not in a condition to be conceded as true, but not by way of proof for the purpose of discrediting direct and positive evidence.
The facts established were sufficient to render it reasonably probable that the applicant had a well-founded claim for some compensation for damages created by the closing of the road, and that was sufficient to entitle him to have a hearing before the board of assessors.
The act of 1867 provides that damages shall be awarded to persons whose property may be injured by the commissioners’ action under it in closing streets, avenues or roads (Laws of 11867, 1750), and that they shall be ascertained and paid in the manner specified by'sections 3 and 4 of an act passed in 1852 (Laws of 1852, p. 47, chap. 52, secs. 3, 4).
It was not necessary to entitle the applicant to a hearing that it should be conclusively shown in the first instance that an award must be made in his favor by the board of assessors. A presumptive case was enough to secure the success of his application for the writ. Upon the hearing he may wholly or partially fail to support his claim. If he should, the board has complete authority so to decide. Its duty is to hear the case as it may be presented. If it shall not be satis
Davis, P. J., and Beady, J., concurred.
