22 Barb. 404 | N.Y. Sup. Ct. | 1856
The common council of the city of Brooklyn, on the 19 th of January, 1854, and shortly after a fire which had consumed all the buildings on the easterly side of Fulton street, opposite the city hall, adopted a resolution in the following wdrds : “ Whereas, that part of Fulton street opposite the city hall is very narrow, and the present is the best opportunity the city may have for some time to widen said street, therefore, resolved, that the matter of widening said street be referred to the street committee.” That committee, on the 24th of the following February, reported that they had examined the matter thus referred to them, and were of opinion that public convenience required the suggested improvement, and that then was a very desirable time to effect it, and they therefore recommended that an act should be prepared and forwarded to the legislature, authorizing the common council to have Fulton street widened, agreeably to the red lines on an accompanying diagram. The common council adopted the recommendation, and it was approved by the mayor on the 15th of the following month; and an application was subsequently made to the legislature, by the common council, for the passage of an act to widen Fulton street, according to the recommendation of the street committee. On the 17th of April following an act was passed by the legislature, entitled “An act to widen Fulton street between Red Hook lane and Court street, in the city of Brooklyn,” and providing as follows: “ Fulton street, between Red Hook lane and Court street, is hereby widened as followsand the act then proceeded to designate the nexf boundary lines,
The relator now applies, in his character of a citizen and tax payer of Brooklyn, for a mandamus requiring the common council of the city, and the commissioners, to pursue the usual measures, subsequent to what has been done, to effectuate the completion of the improvement.
The counsel for the city contended, on the argument, that the order of discontinuance, made at the special term of this court, presents at present an effectual obstacle to the application, and must continue to do so until removed (if it should be removed) on appeal. That would be so if this court had jurisdiction of the matter when the order was made ; but there had not been at that time any proceeding on that subject in this court. The application for the appointment of commissioners had been made to the county court. The delegation of the power to act by either that court or the supreme court, at special term, was limited to two purposes: the appointment of commissioners, and the confirmation (or return for correction) of their report when duly presented. (Act of April 4,1850, tit. 4, §§ 12,13. Laws of that year, pp. 269, 270. Act of April 17,1854, to widen Fulton street, §§ 2, 3.) No other power was delegated to, nor any
There is nothing before me to show that the objection is well founded, and my own examination of the ground, if it is proper to allude to that, has led me to the conclusion that the exclusion of the small part of it which the proposed measure would require, would neither mar its shape nor impair its usefulness. If, as the common council alleges, the park has been assessed at too high a rate, the statutes provide an adequate remedy ; they should have made the objection before the commissioners at the time appointed to review their assessments, and when they met in the office of the city counsel. If they had done that, and presented for the consideration of the commissioners a statement of the facts and considerations upon which they relied, no doubt full justice would have been done, especially as the subject was familiar to one of the commissioners, from his professional and official engagements at the city hall. If they had failed before the commissioners, they could still have appealed to the county court, or to a judge of this court, when the report should be presented for confirmation. Having neglected to present their objections to the commissioners, and to adopt the ordinary measures for redress prescribed by the statute, they ought not now to be permitted to resort to the extraordinary remedy of abandonment. If, however, they had made the usual, statutory efforts to procure redress and failed, and they had ascertained that the expense to the corporation would have been beyond any benefit which the completion of the proposed measure would have conferred, they might still have discontinued proceedings if the final adoption of the contemplated improvement.had been left to their discretion.
On examining the statute relative to widening Fulton street,
But it is a familiar rule that the word “shall” may be substituted for “may,” in the interpretation of a statute, when the good sense of the entire enactment would require the change; and the rule applies when, as in this case, the statute establishes an improvement, and devolves upon any person or persons, or a corporation, the performance of such acts as may be requisite to insure its completion. The legislature would not decree the end without making effectual provision for the means. If the statute had simply devolved upon the common council a discretionary power to pursue or abandon the project, it would have been wholly superfluous, as that body had it before. { Act
From the examination which I have been able to give to this case, I am satisfied that the statute is peremptory upon the common council to pursue the designed improvement to its consummation, and as that body has arrested its progress midway, and declines to proceed any farther, a mandamus should be awarded against the common council; another may-issue directed to the commissioners, but they should be exempted from the obligation to make any return, on signing a stipulation to abide by such judgment as may hereafter be
Ordered accordingly.
S. B. Strong, Justice. Affirmed at a General Term in Kings County, October 14, 1856, held by Brown, S. B. Strong and Birdsey, Justices.]