In re Walter , 28 N.Y. Sup. Ct. 533 ( 1880 )

■ Davis, P. J.,

dissenting:

I do not doubt that the new system gave power to make the improvements to the Park Commissioners, and that the exercise of that power would be lawful; but the question is at whose expense it could be done. The statute protected the land-owners from further assessment so far as to require the consent of two-thirds before the expense could be charged upon them. That protection was never repealed by express enactment; and it was not repealed by necessary implication, because the new powers could all be exercised by the commissioners without the consent of two-thirds of the owners if done at the expense of the general taxpayers. If the work had been done in that way, no owner could have complained because the grade was, changed; but when it was assumed to make that change at the expense of the owners the statute requiring the assent protected them from bearing the whole expense of the work. I do not see why a statute authorizing. work of this kind to be done by a public board, must of necessity be construed as repealing the provisions that protected private owners from bearing new burdens caused by the change of grades already lawfully established at their private expense. To give it 'that construction it must be held that the work could not be done at all except by assessing its expense upon private owners. I think that is putting a construction upon the statute not necessarily demanded. If such a change was necessary for public benefit or convenience in carrying out the park system, it ought on general principles, to be paid for by the public; and I conceive it was not the intention of the legislature to compel private owners to bear those expenses without their free consent to be given in • the mode required by existing laws. I therefore.must dissent from the conclusion of my brethren.

Order affirmed.