In re City of New York , 109 N.Y.S. 950 ( 1908 )

Laughlin, J.:

The question presented by this appeal is whether, where the board of estimate and apportionment authorizes the commissioners to make a separate or partial report of the awards, a report embracing all of the awards to be made may be confirmed' before the local assessment to defray the portion of the expense to be raised in that manner has been made and presented for confirmation.

On the 22d day of December, 1905, the board of estimate and apportionment of the city of Mew York duly adopted a resolution declaring that*the public interests required that certain lands and premises in the borough of Manhattan, Mew York, shown on a map adopted by said board on the 23d day of June, 1905, should be acquired for the widening of Riverside drive on the easterly side from West One Hundred and Fifty-eighth street to West One Hundred and Sixty-fifth street, and for opening and extending West One Hundred and Sixtieth, West One Hundred and Sixty-first and West One Hundred and Sixty-second streets from Broadway to Eiverside drive, and West One Hundred and Sixty-third street from Fort Washington avenue to Eiverside drive, and requesting the corporation counsel to apply to the court for the appointment of commissioners of estimate and assessment, and to take the necessary proceedings to acquire the said lands and premises for said purposes, and providing that one-half of the cost and expense for acquiring the lands and premises for widening Riverside drive should be borne and paid by the city, and that the remainder should be assessed upon the property deemed to be benefited by the improvement, and that the entire cost and expense of acquiring the other lands and premises should be assessed on the property deemed benefited by the improvement. On the 8th day of February, 1907, the board of estimate and apportionment adopted a resolution directing that title to the lands so required for opening and extending West One Hundred and Sixty-second street should vest in the city on the 15th day of April, 1907, and preambles to this resolution showed that commissioners of estimate and assessment for acquiring said lauds had been duly appointed and had duly taken and filed their oaths of office. On the 28th day of June, 1907, the board of estimate and apportionment by similar action declared that title to the remaining lands and premises to be acquired pursuant to the original resolution of said board, should vest in the city on the 10th day of July, 1907.

Acting under said resolution of the board of estimate and apportionment, adopted on the 22d day of December,-1905; the corporation counsel duly instituted a separate proceeding for acquiring lands necessary to widen Riverside drive, and separate proceedings to acquire lands necessary for opening and extending each of the streets. This is one of such separate proceedings and it relates to four parcels of land constituting all of the lands necessary to be acquired for so opening and extending West One Hundred and Sixty-second street.

Prior to the amendment of section 980 of the Greater New York charter^* by section 8 of chapter 658 of the Laws of 1906, which took ' effect on the 29th day of May, 1906, all of the commissioners appointed to ascertain the compensation to be made to owners for lands taken constituted a board for assessing upon the property benefited that part of the cost and expense required to be so assessed; but by said amendment the assessment of benefits was thereafter required to be made by a commissioner to be designated in the order of the court, as a commissioner of assessment’pursuant to the amendment of section 973 of the Greater New York charter, made by section 3 of said chapter 658 of the Laws of 1906. The order appointing the commissioners in this proceeding was made on the 14th day of April, 1906, before said amendment took effect, and in accordance with the provisions of the charter as they then existed, it designated the three commissioners as commissioners of estimate and assessment. On the 10th day of May, 1907, the com- - missioners filed in the bureau of street openings in the law department of the city, as required by section 981 of the charter,* an abstract of the awards to be made for each of the four parcels of land, and on the next day gave due notice of the filing thereof and of the lands to be assessed, with notice that the assessments would .appear in their “ last partial and separate abstract of estimate and assessment,” and would be contained in their “last partial and separate report,” and that in case no objections should be filed to said abstract, their first partial and separate report would be presented to the court for confirmation on the 9th day of July, 1907, but that in case objections should be filed then the motion to confirm the report would stand adjourned to a date to be thereafter specified in a notice to be given to all parties who had appeared in the proceeding, and to be published in the City Record pursuant to the provisions of sections 981 and 984 of the charter.^* Thereafter and on the 8th day of Movember, 1907, the commissioners filed their “ First Partial and Separate Beport,” and gave due notice of a motion to confirm the same, returnable on the 14th day of Movember, 1907. On the return of the notice of'motion counsel for the respective parties in whose favor awards had been made, favored the confirmation of the report, but counsel for the city opposed upon the ground that the commissioners had proceeded on an erroneous principle and that the awards were excessive, and counsel for a certain property owner within the proposed area of assessment opposed the confirmation of awards for three of the parcels. The report was confirmed. . On this appeal the only point argued by counsel for the city is that the awards could not be confirmed until the assessments for benefits were made and before the court for confirmation at the same time. This point was not taken at Special Term and it is conceded that in other proceedings authorized by the general resolution of the board of estimate and apportionment, adopted on December 22, 1905, separate reports of entire awards have been confirmed before' the assessments were presented for confirmation. We are informed that the point has been taken by parties interested in the assessments to be made, and for that reason it is now urged by counsel for the city to the end that an authoritative decision may be had and that the right of the city to impose the assessments may not be jeopardized. The fact that similar reports have been confirmed in other proceedings is not significant, since the objection now raised was not then taken. Mor is it material that the city did not oppose confirmation at Special Term on this ground. The point presents a question of law and depends upon the construction of various provisions of the charter bearing thereon and of the proceedings of the board of estimate and apportionment purporting to authorize the commissioners to make a separate report.

Prior to the amendment to various sections of the charter made by said chapter 658 of the Laws of 1906, with certain exceptions to be presently noted, the commissioners were required to embody in one report their estimate of damages and the assessments. (Greater M. Y. Charter [Laws of 1901, chap. 466], § 985.) The exceptions were contained in the last two sentences of that section, which were as follows : “ Said commissioners of estimate and assessment may, when authorized by a majority vote of all the members of the board of estimate and apportionment, make up and file a preliminary abstract of their estimate of damages, separate and apart from their estimate of assessments for benefit, embracing either the entire lands, tenements, hereditaments and premises to be acquired or successive sections or parcels thereof, and ascertain and estimate the compensation to be made thereon and make a separate report with reference thereto. Such separate or partial report shall be made in the same form and manner, and such proceedings shall be had in respect thereto, as in respect to the report of the commissioners relative to the entire lands taken and assessed as herein provided for, except that the final or last separate report shall contain the assessment for benefit.” We were informed by counsel for the city on the argument that the practice in the exceptional cases provided for by that part of the section herein quoted was to confirm a report of all of the awards, separate and apart from a report of the assessments, or a partial report of part of the awards, other than a final partial report of awards, or, in other words, other than the last partial report of awards not previously confirmed, separate and apart from the report of assessments when that course was taken, but that when all of the awards were not confirmed at the same time, the last report of the remaining awards contained the assessments as well. This appears to be a literal as well as a proper construction of these statutory provisions, and if the proceedings of the commissioners with respect to the awards are not affected by said amendments to the charter, there' could be little doubt but that the report was properly confirmed. By the amendments to the various sections of the charter by said chapter 658 of the Laws of 1906, changes in the statutory provisions with respect to the report of the commissioners were made. They relate to matters of procedure, and, therefore, and on account of section 33 of the amendment, which provides as follows, “ The provisions of this title shall apply to all pending proceedings where the duty or duties herein or heretofore imposed or act or acts heretofore required to be done have not been performed,” the learned counsel for the city contends that they apply to and govern pending proceedings, and this contention is likewise made by one of the counsel for respondents, and not controverted by counsel for the other respondents. It is to be borne in mind, as already observed, that these amendments effected a change whereby the awards were made by the three commissioners as before, but the assessments were made by one only, specially designated by the court for that purpose, and that in this proceeding the three commissioners, having been' appointed before the amendment took effect, are serving in both capacities. No provision is made in the law for amending the order appointing the commissioners by designating one of them as a commissioner of assessments. It is, therefore, not entirely clear that the amendments which were designed to govern reports as to assessments made by one commissioner should be deemed applicable to pending proceedings wherein the commissioners had been appointed to act together in both capacities, and I doubt the correctness of the construction for which apparently all counsel contend. However, I am of opinion that, assuming that the amendments apply to this proceeding, the report was properly confirmed. For the purpose of carrying out the scheme by which three commissioners were to make awards and one only was to make the assessments, section 981 was amended so as to require separate reports of the awards and assessments. It, therefore, became necessary in order to preserve the then existing practice of bringing the reports of the awards and assessments on for confirmation at the same time in ordinary cases as before, to insert an express provision, for while this was formerly insured by the requirement that the awards and assessments should be combined in the same reports, it would have been left after the amendment without regulations had there not been an express provision inserted. To that end a sentence was added to section 981 providing as follows : “ Except as herein otherwise provided, the report as to awards and the report as to assessments must be noticed for and brought on for confirmation at the same time and place.” At the same time section 985 was amended with respect to exceptional cases in which awards and assessments need not be brought on for confirmation at the same time, by substituting in place of the last two sentences thereof, hereinbefore quoted, the following, to wit:

“Said commissioners of estimate may when authorized by a majority vote of all the members of the board of estimate and apportionment, make up and file a preliminary abstract of their estimate of damages, embracing either the entire lands, tenements, hereditaments and premises to be acquired or successive sections or parcels thereof, and ascertain and estimate the compensation to be made thereon and make a separate report with reference thereto. Such separate or partial report shall be made in the same form and manner, and such proceedings shall be.had in respect thereto, as in respect to the report of the commissioners relative to the entire lands taken as herein provided for. In such cases the final partial abstract and report as to awards and the final abstract and report as to assessments for benefit, shall be made up and filed and brought on for confirmation at the same time and place.” It will be observed that the changes in the last two sentences of the section as it previously existed, made by this amendment, were appropriate and necessary in view of the change made in the law by which separate reports of awards and assessments were to be made. That change necessitated the omission from the second last sentence of this section as it stood before, the clause required at that time to authorize the commissioners to make a report of awards separate from a report of assessments. The amendment relates to the commissioners of estimate who now make the awards only and report thereon separately. With the exception of the formal amendments essential to carry out this idea, there is no material difference between the two former sentences and the three sentences substituted in place thereof. The last two sentences of the section before the amendment were authority for both a preliminary abstract and separate report of all or part only of the damages awarded, and since the amendment the three substituted sentences are authority for the same thing. The separate report of all awards meant, before the amendment, separate from the report of assessments and the same language has been retained in the amendment and means the same now, notwithstanding the fact that under the amendment the report, even of all of the awards and if made at the same time the report of assessments is presented, as is now required in all other cases by the final sentence of section 981, would necessarily be separate from the report of the assessments. If this be not so, then no force is given to that provision of section 985, as amended, which in express terms authorizes a separate report of all of the awards, and also by express terms authorizes the same proceedings to be taken on such report as if it had been presented as an entire report under the general rule prescribed in section 981 relative to a report of awards presented with the report of the assessments, which necessarily means that a motion for its confirmation may be made and it may be confirmed without awaiting the presentation of the report of the assessments and motion to confirm the same. The effect of the amendment, as I construe it, is in this respect the same as the law provided before the amendment, viz., that if the report be of part only of the awards, the final or last report of the remaining awards must be presented for confirmation at the same time the report of the assessments is presented for confirmation.

The appellant also challenges the sufficiency of the resolution of the board of estimate and apportionment to authorize the commissioners to make and file a preliminary abstract of their estimate of damages and a separate report with reference thereto. The resolution expressly and clearly authorizes the making and filing of a preliminary abstract of the damages, but it fails to authorize m, express terms a separate report thereon. The intention of the board to authorize both, however, is very plain. There would be no object in authorizing the one without authorizing the other. The action of the board was induced by a petition of some of the parties whose lands were to be taken, which expressly requested this course and assigned many plausible and apparently sufficient reasons therefor, which the engineer of the board, to whom the petition was referred for a recommendation thereon, deemed well founded, as is shown by his report in writing made on the advice of the bureau of street openings and presented to the board before the resolution was adopted. It was, therefore, clearly the intention of the board to authorize not only the preliminary abstract of the awards, but also the separate report thereon for confirmation before the report of the assessments, and the resolution adopted by the board construed in the light of the proceedings upon which the action of the board was taken, was sufficient to warrant both the making of not only the preliminary abstract but of the separate report of all of the awards as well, and as has been seen this course was authorized under the amendments to the charter to which reference has been made, as well as before the adoption of such amendments.

It does not expressly appear on the record as presented to us, as it should, that the resolution of the board of estimate and apportionment authorizing a preliminary abstract and report of the awards was adopted by the vote of a majority of all of the members of the board, as required by the charter; but no question in that regard has been raised on the appeal and we shall assume, therefore, that the resolution was adopted by the necessary vote taken by calling and recording the ayes and noes, and that the record of the proceedings of the board of estimate and apportionment so shows:

It follows that the order should be affirmed, with ten dollai-s costs and disbursements to each respondent appearing separately on the appeal.

McLaughlin and Clarke, JJ., concurred; Ingraham and Scott, JJ., dissented.

* See Laws of 1901, chap. 466, § 980, as amd. by Laws of 1905, chap. 299. — [Rep.

* Amd. by Laws of 1906, chap. 658.— [Rep.