In re East 177th St. & Bronx Park Avenue

GIEGERICH, J.

The city moves for an amendment of this proceeding in accordance with a resolution passed by the board of estimate and apportionment on June 13, 1912. After commissioners of estimate and the commissioner of assessment had been appointed herein, the board of estimate and apportionment passed a resolution excluding from the lines of the streets as laid out on the final map of the city of New York certain lands which the commissioners of estimate and commissioner of assessment had been previously appointed to condemn. Such resolution was adopted pursuant to section 442 of the Greater New York Charter (Laws 1901, c. 466), which provides:

“The board of estimate and apportionment is authorized and empowered, whenever and as often as it may deem it for the public interest so to do, to change the map or plan of the city of New York, so as to lay out new streets, parks, bridges, tunnels and approaches to bridges and tunnels and parks, and to widen, straighten, extend, alter and close existing streets. * * * ”

After such change was made in the lines of the streets by the resolution of the board of estimate and assessment, it became necessary, of course, to make a suitable amendment in this proceeding, and accordingly this motion is brought on pursuant to section 974 of the Greater New York Charter, which in part provides:

“Said court shall have power at any time to amend any defect or informality in any special proceeding authorized by this title that may be necessary, or to cause property affected by said defect, informality or lack of jurisdiction to be excluded therefrom, or other property affected by said defect, informality or lack of jurisdiction to be included therein, iby amendment * * * ”

On the return day of the motion one W. A. Soye appeared in person and entered certain protests, which are embodied in a memorandum submitted by him. Mr. Soye appears to be the owner of the premises located on Bronx Park avenue, between Walker avenue (West Farms road) and East 180th street. In the original form of the proceeding the commissioners were appointed to acquire title to this, portion of Bronx Park avenue to a width of 80 feet. The proposed amendment reduces the width of such portion to 60 feet. Mr. Soye asks that the portion of Bronx Park avenue between Walker avenue and East 180th street be omitted from the proceeding.

The board of estimate and apportionment, under the authority of said section 442 of the charter, having decided that it was for the public interest that the lines of the streets to be acquired should be changed, this court has no power to alter such determination (Matter of William and Anthony Sts., 19 Wend. 678, 681; Matter of John and Cherry Sts., 19 Wend. 659, 667; Matter of Albany St, N. Y. 149, 151, 25 Am. Dec. 618; Wiggin v. Mayor, 9 Paige, 16), and its function on the present motion is solely to conform this proceeding to the resolution of that board changing the lines of the street.

The motion to amend should therefore be granted. Order signed.