County of Dutchess v. Cary

283 A.D. 951, 130 N.Y.S.2d 415, 1954 N.Y. App. Div. LEXIS 5903

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1954
• Status: Published

Opinion

— Appeal from order appointing commissioners of appraisal in a proceeding to condemn property for highway purposes and refusing appellant a hearing as to the necessity for the taking. Order unanimously affirmed, with costs. While there is doubt that an appeal lies from the order (Matter of Board of Transp. of N. Y., 272 N. Y. 52, 55; County of Orange v. Storm King Stone Co., 180 App. Div. 208; Matter of Mayor of City of N. T., 22 App. Div. 124; Hooker V. City of Boehester, 57 App. Div. 530, affd. 172 N. Y. 665; Matter of Broadway & Seventh Ave. B. B. Co., 69 Hun 275), we have considered the appeal on the merits. The absence of any provision in the Highway Law to bring the factor of necessity of taking within judicial consideration shows that the Legislature has delegated its power to the Board of Supervisors to determine necessity. The determination of necessity, therefore, is a legislative function and not a judicial one. (Matter of Townsend, 39 N. Y. 171; Matter of Fowler, 53 N. Y. 60, 62; Matter of Public Service Comm,., 217 N. Y. 61; People v. Adirondack By. Co., 160 N. Y. 225; County of Jefferson v. Horbiger, 229 App. Div. 381; Matter of Hicks Development Corp. v. Incorporated Vil. of Lawrence, 282 App. Div. 1048, affd. 306 N. Y. 922; Bunyan v. Commissioners of Palisades Interstate Park, 167 App. Div. 457, 462, 463.) Present — Nolan, P. J., Wenzel, MaeCrate, Beldoek and Murphy, JJ.