6 Daly 18 | New York Court of Common Pleas | 1875
The act of 1867 declares that all damage to any land or building by reason of the closing of any street
These sections in the act of 1852, do not provide for^ ascertaining and paying any damage from the closing of a street; but for such as may arise thereafter from altering or changing, in whole or in part, the grade of any street. What is referred to indirectly, therefore, in the act of 1867, is the mode of ascertaining and paying damage in the act of 1852, which was by •estimating the loss or damage of each owner of land, by the persons appointed to estimate the expense of the change of grade; and to ascertain who those persons were, when the act of 1852 was passed, and who they were when this act of 1867 was passed, it will be necessary to review the state of the statutory law upon this subject, when the act of 1852 was passed, and the changes made in it afterwards, down to the time of the passage of the act of 1867.
By the Dongan and Montgomerie charters, the corporation had the power to direct the “laying out of streets,” and also the power of “ altering, amending or repairing ” streets; words comprehensive enough to include a change or alteration in the grade (Kent’s Charter, pp. 15, 100, 235, 237). By the act of 1787, c. 88, this power was further recognized, and the common council were authorized to appoint two persons to be the surveyors of buildings, streets, wharfs, &c., and to see that they were laid out, altered, &c., so as to be regulated with uniformity, according to the ordinances of the corporation, and the corporation were authorized to take the ground of any private person for such purposes, whose damage was to be assessed by a jury. By the act of 1801, c. 129, the corporation were further empowered to make by-laws, or orders for “regulating and altering” the streets, as well as other matters, and to appoint five freeholders to estimate the expense, and make a just and equitable .assessment of it upon the owners or occupants of houses benefited ; and by the act of 1813, § 175, the assessment for “ the altering or amending ” of streets, instead of being made by five freeholders, was to be made by such skillful, competent and disinterested persons as the common council might think proper to appoint. Under this latter authority, the common council
The act of 1852 restricted the common council from making any change of grade south of 63d street, except with theewritten consent of at least two-thirds of the owners of the land, and it required what had never been required before, except where a change of grade had become necessary by the opening of a street, that an estimate should be made of the loss and damage sustained by each owner of the land fronting on the street the grade of which was to be changed; which additional duty, it imposed upon the assessors, who were to estimate the expense of the improvements, by requiring them to make a just and equitable award of the amount of the damage to each owner.
By the act of 1816, c. 160, provision was made for ascertaining the damages sustained by the owners of land where a new regulation in the elevation or depression of a street had
By the act of 1818, c. 213, provision was made for ascertaining and paying the damages to the owners of land caused by the closing of streets, which is to be ascertained by “ three commissioners of estimate,” to be appointed by the Supreme Court. It is equally evident that they are not the persons referred to, for they are not denominated “ assessors,” but “ commissioners of estimate,” and they could not have been intended by the act of 1867, for the act does not refer to the act under which they were appointed; but declares that the damages shall be ascertained and paid in the manner specified in the third and fourth sections of the act of 1852, and these sections, as I have said, specify the assessors appointed to estimate and assess the expense of conforming to a change of grade.
This was the state of the statutory law when the act of 1852 was passed. At that time, by the amended charter of 1849, § 12, there was an executive department called the street department, which, by the provision of the amended charter, had cognizance of “ the opening, regulating and paving streets,” “ when done by assessment; ” terms which embrace any change or alteration in the grade, and the bureau for the- collection of assessments attached by that amended charter to the street department, made the assessment lists, as appears by the acts of 1851 and 1853 before referred to, for in the act of 1853, c. 508, § 2, a specified compensation is given to them “ for their services in making such assessment,” “ on the confirmation of the assessment list,” and this state of things lasted until the
That the officers designated in the act of 1851 as “ the assessors of the street department ” did make the assessments for a change of grade, or for any alteration in the regulation of a street, 1 infer not only from the provision in the act of 1853, giving them compensation for their services in making assessments, but from the fact that these officials attached to the street department, the street commissioner, his assistant and the first clerk in the department, were required by the ordinance of 1839, before referred to, to perform the duties of assessors in making, among other things, the estimates for the expense of repairing streets when done by the order of the common council, and to make the assessment for such expense among the owners or
The Legislature, when they passed the act of 1867, must be assumed to have known all the prior legislation, and the state of the statutory laws relating to streets in the city of Mew York as it existed when this act of 1867 was passed ; that is, they must be assumed to have known that under the act of 1813 there were assessors for ascertaining the expense of such improvements, directed by the corporation, as the regulation or altering of streets; commissioners for ascertaining the damage to land owners by elevating or depressing the grade of a street, in consequence of the opening of a new street, and that they were the commissioners appointed by the Supreme Court for the opening of the street; that when a street was closed the damages to land owners were ascertained by commissioners of estimate appointed by the Supreme Court; that under the amended charter of 1849, a bureau for the collection of assessments was created; that by the act of 1851, an organization was recognized as existing in the street department, known as “ the assessors of the street department; ” that the street department had, under the amended charter of 1857, ch. 187, cognizance of the “ altering, grading and regulating ” of streets, and that, by the act of 1859, the board of assessors, which was then created, succeeded to all the powers in respect to assessments for altering, grading and regulating of streets under corporation ordinances, which the assessors appointed by the common council had under the act of 1813, or the assessors of the street department under the amended charters of 1849 or 1857.
The intent of the act of 1867 is very plain. It is that the damage to any land, building or structure, by reason of the closing of a street, or the altering the grade of a street, within the district specified, shall be ascertained and paid. The manner in which it is to be ascertained and paid is the only thing in respect to which there can be any doubt. It is to be in the manner specified in the 3d and 4th sections of the act of 1852, that the damages are to he ascertained by the assessors appointed to estimate the expense of a change of grade, and if there were no persons known by that name when the act of 1867 was passed, then it must mean the official persons who have succeeded to and who then performed that duty, by whatever name they were known. If there were such officials when this act of 1867 was passed, then there is no difficulty in giving effect to and carrying out the intent of the act. The hoard of assessors created in 1859 have authority to estimate the expense of improvements ordered by the corporation, other than those specifically enumerated in the act creating that board and defining its powers. A change in the grade of a street is not among the matters specifically enumerated, but it is embraced by the lan
It is objected to this mandamus that they are required to ascertain the plaintiff’s loss and damage; and that, under all the acts, there is to be but one general proceeding in which the loss and damage of each person is to be ascertained. Let them, then, go on and do this; and when they have done so, the specific amount to be awarded to the plaintiff will be ascertained. I apprehend that this has not been the difficulty, but that it has been their doubt as to their authority, in respect to which they very properly applied to the corporation counsel, and that officer, instead of giving any opinion as to how the positive provision of the statute, that the damage to the land owner from the closing of the street is to be ascertained and paid, was to be complied with, told the board of assessors that he had no doubt that that was the intent of the act; but that he doubted whether the object had been accomplished by the enactment, and in view of the doubt he entertained as to the jurisdiction, that he could not advise them to act.
He has set forth, in his opinion, the grounds upon which this doubt was founded; and, in my judgment, it has no bearing whatever upon the question. It is substantially this, that the expense of the survey and of the maps, by the filing of which the street is closed, is not paid by assessment, but by
Loew and Labbemobe, JJ., concurred.
Order affirmed.