128 N.Y.S. 74 | N.Y. App. Div. | 1911
The evident purpose of the relator is to compel the city to apply .to the court for leave to discontinue, in the expectation that the court will impose the payment of costs as a condition of discontinuance. It is not pretended that title to the property, sought in the condemnation proceedings, has vested in the city or that the possession of the owners has been interfered with.
In Matter of Waverly Water Works Company (85 N. Y. 478) it was decided that the Special Term had the power to impose as a condition of discontinuance of condemnation proceedings the payment of more than the taxable costs and disbursements, upon the theory that the proceeding could only be discontinued by leave of the court, and that the Special Term had discretion to refuse leave. But there is a plain distinction between the exercise of the right of eminent domain by a corporation, representing private interests, and such exercise by public officers. (Matter of Commissioners of Washington Park, 56 N. Y. 144.) In that case the Special Term had granted leave to discontinue upon payment to the landowners, who were parties to the proceeding, of their necessary and reasonable costs and expenses. The point discussed was whether any rights had become vested, which required the court to refuse leave. The earlier decisions on that question were discussed by Judge Rapallo, and the conclusion was reached that, until the confirmation of the report, no rights vested in the property owners. The court did not determine whether the Special Term had discretion to refuse leave. The order imposing terms was affirmed on the theory that by making the application the park commissioners conceded to the court the power to determine the terms upon which it should be granted and, in that connection, it was said : “The cases cited seem to recognize the necessity of such leave.” Undoubtedly by entertaining and granting motions for leave to discontinue, the courts in a sense recognize the necessity of such leave ; but the point
When the question first arose in this State there appears to have been a difference of opinion between the Supreme Court and Chancellor Kent as to the right of a public officer or board to discontinue. (See Matter of Beekman Street, 20 Johns. 269 ; Corporation of New York v. Mapes, 6 Johns. Ch. 45.) But the latter’s view to the effect that the corporation might abandon its plan at any time before confirmation of the report was later adopted by the Supreme Court. (See People v. Corporation of Brooklyn, 1 Wend. 318; Matter of Canal Street, 11 id. 154; Matter of Anthony Street, 20 id. 618 ; Martin v. Mayor, etc., of Brooklyn, 1 Hill, 545.) Ho doubt it was assumed by the Legislature that the effect of those decisions was to require application to the court for leave to discontinue, because, by section 7 of chapter 209 of the Laws of 1839, relating to the city of Hew York, application to the court for leave to discontinue was dispensed with.
Section 1000 of the present charter (as amd. by Laws of 1906, chap. 658), relative to proceedings for the acquisition of property for streets and parks, provides for discontinuance by the board of estimate and apportionment, and in such case for the payment by the city of the necessary disbursements incurred by interested parties; but I do not think that the inclusion of a provision on the subject in the chapter relative to the acquisition of property for streets and parks, and the omission of such a provision in the chapter relative to the acquisition of property for other purposes, including school sites, is determinative of the question. If it be said that express authority conferred in the one case and withheld in the other indicates an intention that there shall be no such authority in the latter, it may be said with equal force that the express provision for the payment of disbursements in the one case and the absence of any such provision in the other indicates an intention not to require such payment in the other. The Legislature has left the question of discontinuance in proceedings under said chapter 21 to be determined according to the rules of the common law.
Of course, ordinarily, an action or proceeding in court can be
Moreover, while there is no express authority on the right to discontinue without leave of court, there is authority for the proposition that the relator had no such right to the continuance of the proceedings as justified the granting of the peremptory wilt to require, the filing of the report. (See People v. Corporation of Brooklyn, supra.) That was a street opening proceeding. The commissioners of estimate and assessment were appointed and made their report. The act in question required the trustees of the then village of Brooklyn to cause the report to be filed with the clerk-of the Court of Common Pleas at the next term thereof , but the trustees upon receiving the report refused to file it, and it
The order should be reversed, with ten dollars costs and disburse ments, and the motion denied, with ten dollars costs.
Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.»
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.