Matter of City of New York (Cruger Ave.)

The state owns some unappropriated state lands within the city of New York. These lands are placed by statute in charge of the commissioners of the land office. They may not be sold for unpaid local assessments or for taxes, but they may be disposed of by the commissioners at public auction at their discretion. The city of New York now desires to carry a street across these lands and has begun condemnation proceedings to acquire title thereto. Its power so to do is the question before us.

There is little doubt but that the legislature may, if it chooses, permit the title to such ands to be acquired through condemnation for public purposes. Indeed, such a right to condemn was many years ago expressly conferred upon railroad corporations (Railroad Law [Cons. Laws, ch. 49], sec. 18), and the propriety of such action has been recognized. (Matter of Staten IslandRapid Transit Co., 103 N.Y. 251.)

We think, however, that none of the creatures of the state may take such lands by condemnation unless that power is conferred upon them by express words or by necessary implication. (Independent School Dist. v. State, 124 Minn. 271.) Such is not the situation here. Section 970 of its charter permits the city of New York to acquire title in fee "for the use of the public to all or any of the real property required for streets." This is no broader than the provision permitting a railroad corporation to acquire "such real estate and property as may be necessary" for its construction. "The general authority conferred upon railroad corporations to acquire lands against the will of the owner is broad and comprehensive. In terms it covers all and excepts none." (Matter of New York, L. W. Ry. Co., 99 N.Y. 12. ) Yet we held that there were certain implied exceptions. One of them must have been an exception with regard to state lands, for it seemed necessary to confer express authority before such lands might be taken.

The orders of the courts below so far as appealed from should be reversed, with costs in all courts, and motion to dismiss proceedings granted, with ten dollars costs, and the question certified answered in the negative.

HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE and LEHMAN, JJ., concur.

Orders reversed, etc.