Striker v. Kelly , 1 Lock. Rev. Cas. 442 ( 1799 )

The Supreme Court (Bronson, J. dissenting on several grounds,) decided:

1. That the statute authorizing the Supreme Court to appoint commissioners of estimate and assessment and to order the confirmation of their reports, is not incompatible with that part of the constitution of the state which prohibits the “justices” of the court from holding “any other office or public trust.” ' (Bronson, 3. dissenting.)

2. That the power conferred by it on the corporation to sell real estate in order to pay an assessment for benefit does not conflict with the constitutional provision which prohibits the taking of private property for public use without just compensation.

3. That in appointing commissioners, and in confirming their reports, the court exercises a special and limited authority ; and the party seeking to avail himself of its proceedings must show the facts necessary to confer jurisdiction; that its powers in these respects, though derived from and limited by the statute, are judicial in their character; and that for the purpose of giving the court jurisdiction, it was necessary to prove among other things that the corporation of New York had decided to open the Ninth Avenue, before presenting their petition to the court for the appointment of commissioners: That the fact was sufficiently established at the trial, provided the resolution was properly adopted by the common council. That the objection to it, that it was passed in violation of the act of April 7th, 1830, without calling the ayes and noes, was not valid, as that provision should be construed as directory merely; and the form and manner of the passage of the resolution were not essential.