Dyckman v. Mayor of New-York , 7 Barb. 498 ( 1849 )

By the Court, Edwards, J.

The first ground of objection which was taken by the plaintiff to the documentary evidence introduced by the defendants was, that they had shown no attempt to agree with the owners of the property in question, as to the amount of compensation, before application was made for the appointment of appraisers.

The act of 1834 (Laws 1834, p. 453, § 12,) authorized the water commissioners to enter upon land, and agree with the owner of any property which might be required, as to the amount of compensation to be paid to him. And it provided, in case of disagreement, that the vice chancellor might, upon the application of either party, nominate and appoint three indifferent persons to examine such property, and to estimate the value thereof, or damages sustained thereby, and to report to the court without delay; and that upon the confirmation of the report by the vice chancellor, the commissioners should within two months thereafter pay to the owner, or such person or persons as the court might direct, the sum mentioned in the report, and that thereupon the mayor, &c. of the city of New-York should become seised of the property.

It will be observed that this act delegated to the defendants the exercise of the right of eminent domain, for the purpose of constructing a work of great public benefit and utility. But, inasmuch as the right could not be so exercised consistently with the provisions of the constitution, unless just compensation should be made for all property taken, the act contained a provision directing in what manner such compensation should be ascertained ; and as there might be many cases in which the water commissioners could, if proper facilities were afforded to them, come to an agreement with the owners of the property as to what should constitute a just compensation, without the necessity of having a formal examination and appraisement, a provision was made by which they were authorized to enter upon the property required, for the purpose of making surveys, and agreeing with the owner thereof as to the amount of compensa-, tion. This provision was not intended for the purpose of pro-, tecting any right of the owner of the property required, nor for the purpose of conferring any benefit upon him; and it is not contained in most of the acts in which corporations have been authorized to exercise the right of eminent domain. The object of the legislature was to afford every facility for an amicable arrangement between the water commissioners and the owners of property. The act then provided that in case of disagreement, three indifferent persons might be appointed to examine the property, and estimate its value.

The construction which is given by the counsel for the plaintiff to this last provision is, that before application can be made for the appointment of appraisers there must be a formal offer of compensation upon the one side, and a refusal upon the other—that there must be an issue formed between the parties. We do not think that such a construction is necessary for the protection of the'rights of the owners of property, nor that such is the spirit and meaning of the statute. All that any reasonable construction of the act can require is, that the parties should have failed to come to an amicable arrangement; or, in other words, that there should be a difference of opinion as to the compensation which one party would be willing to give, and the other party to receive. That such a state of facts existed in this case, it would seem, could hardly be denied after reading the bill of exceptions. It there appears that the owners of the property attended before the appraisers; that they objected to the confirmation of the appraisers’ report; that there was a second examination of the property; that the confirmation of the second report was objected. to; that after it wás confirmed it was appealed from; and that, finally, when the amount of compensation had been fixed the owners of the property not only refused to receive it, but objected to its payment into court. If there had been no disagreement how is it possible that the parties could have been in a continued state of opposition from the commencement of the proceedings before the vice chancellor to this day 1

But it is contended that no notice of the application for the appointment of appraisers was given to the plaintiff.

The statute does not, in terms, require any notice to be given. The practice, however, was to give notice, and I shall assume that a correct interpretation of the statute required it. But no provision is made as to what should constitute a sufficient notice. It appears from the bill of exceptions that the notice to the plaintiff was served upon his mother, who was one of the tenants in common, at her residence on the premises, and it also appears,that the plaintiff, and all the other owners of the property, resided with her. There is no general rule of law which requires that the service of notice shall in all cases be personal. Notice may, in some instances, be given by publication; in other cases it may be sent through the mail; and in others, it may be served by being left at the residence of the party, or at his place of business. The latter is considered sufficient notice under the law merchant, in many transactions of high importance. And, in a case like the one before us, there is no reason why it should not be considered, at least, as prima facie sufficient. But, even if it were insufficient, the plaintiff has waived all" objection to the regularity of the proceedings on that ground. An appearance without objection will always cure a defect arising from a want of, or from an insufficient notice. The bill of exceptions shows that all the members of the family employed William N. Dyckman to act for them as counsel. It also shows that the counsel thus employed appeared before the vice chancellor in opposition to the first report made by the appraisers; that he appeared before the appraisers on the second examination of the property; that he appeared in opposition to the confirmation of the second report, and that he never made any objection to the proceedings either on the ground of a want of notice, or that there was not a case of disagreement within the provisions of the act.

The next objection taken to the regularity of the defendants’ proceedings is, that there should have been a separate appraisement of the value of the interest of each of the co-tenants.

The act speaks of the “ owner of any property which may be required.” The word owner, according to every reasonable construction of the statute, means the person or persons who represent a particular piece of property, where there is a unity of possession. Although the separate tenants in common have separate and distinct interests, still, as it is expressed, “none knoweth his own severalty;” and it is not the province of the appraisers to make partition of, and adjust the interests of the different tenants, which they would be required to do, if they appraised the interest of each tenant severally. The extent of the duties of the appraisers, under the statute, is to estimate the value of property required.

The final objection which was taken is, that the compensation which was ascertained by the appraisers, was not paid within two months after the confirmation of their report.

It is not pretended, on the part of the defendants, that an actual payment was made, but they contend that they made a valid legal tender. If such a tender was made, it was undoubtedly a sufficient compliance with the statute.

The testimony of the attorney for the water commissioners shows that he went to the residence of the plaintiff, and that he made a tender in gold of the amount awarded by the appraisers, to one of the members of the family; that the person to whom the tender was made had acted for the family throughout the proceedings; that when the tender was made to him, he was told that it was made for the benefit of the family; and that he said “ we will not receive it.”

There is no doubt that the tender was regular in form; and we think that the evidence satisfactorily shows that the person to whom it was made was authorized by all his co-tenants to refuse it. But, if there were any doubt whether such an authority had been previously granted, the bill of exceptions shows that his acts were subsequently acknowledged and ratified; for it appears from the testimony which was introduced by the plaintiff, upon the cross-examination of one of the defendants’ witnesses, that when the attorney for the water commissioners applied to the vice chancellor for leave to pay the money into court, the counsel who represented all the owners, including the plaintiff, opposed it, and. that owing to such opposition the application was denied. The defendants then did every thing in their power for the purpose of making payment. If they failed in doing so, it was through the fault of the plaintiff alone, and he can have no just cause of complaint.

The motion for a new trial must be denied with costs.