In re Anthony-street

20 Wend. 618

• Court: New York Supreme Court
• Decided: September 15, 1839
• Status: Published

Opinion

By the Court, Cowen, J.

The cases heretofore decided by this court and the court of chancery, leave it quite clear that individuals acquire no vested right under these street proceedings and therefore can not insist that the corporation shall go on, until the final confirmation of the report of the commisioners of estimate and assessment, Kent, Ch. in the Corporation of N. Y. v. Mapes, 6 Johns. Ch. Rep. 49. Matter of the application of the Mayor, &c. relative to Third street, 6 Cowen, 571. Hawkins v. The Trustees of Rochester, 1 Wendell 53. The People v. Brooklyn, id. 318 et sequitur, and other cases there cited. Matter of Canal street, 11 id. 154. This view accords best with the language of the statute under which the proceedings take place. 2 R. L. of 1813, pp. 413, 414. By that act, so often as this court shall be dissatisfied with the report of the commissioners, it is to be referred back for revisal and correction ; and on the final confirmation of the report, the corporation become seized ; and, according to the cases, the corresponding rights of others vest.

In the case at bar, there has been no final confirmation, within the meaning of the act. The whole report was referred back as the statute requires it should be until we should be satisfied with it. The only difficulty raised is based on the concluding language of the rule, which declares, that the report is confirmed in all respects, excepting two particulars, wherein the commissioners were directed to make corrections. That, however, was clearly but another mode of expressing the opinion of the court, for the benefit of the commissioners and parties. It could not alter the legal effect of the reference, which was of the whole report; and indeed left the whole open for possible revisal. The confirmatory language in which the rule has been thought convenient, as indicating our approval of a certain portion of the proceedings, and the word approved might have been more apt than confirmed; but the legal result is the same. Unless specific errors are pointed out in some way, the whole ground might be travel-led over, and a thousand persons be heard by the commissioners, and again by the court, though, on the first hearing, we were satisfied with all except one or two particulars. Strictly speaking, there is in any one proceeding but a single report; and what are called second or third supplemental reports, are but parts or modifications of a legal whole. As such it passes by reference between the court and the commissioners. It can not be confirmed piece-meal. The whole proceeding is entire, like a suit at law ; and, in a legal sense, the whole is confirmed or discon' tinned at a single blow. This, too, seems to me the only method of considering the matter which is feasible and just to all parties. The report of estimate and assessment alone is what we have power to review. This has reference to and is dependent on a single improvement, which can not be split into fragments, in proportion as we may from time to time allow or disallow parts of the report; relative rights, claims and liabilities becoming vested and apportioned accordingly. „

It is true, that the proceedings on the report being entire and indivisible, a confirmation of part would be a confirmation of the whole, upon the general principle that a plaintiff or prosecutor can not split his claim. If he take judgment for a part, it is a judgment for the whole, and bars all proceeding by another suit or in the same suit for the residue. But the rule means a judgment or confirmation final in its legal character. Accordingly a judgment, which is in form one of nonsuit by a common magistrate, shall be held to be a nonsuit or a judgment final on the merits, and barring a second suit, accordingly as the justice had the legal right to render judgment with the one or the other effect at the time. Hess v. Beekman, 11 Johns. Rep. 457. Elwell v. M'Queen, 10 Wendell, 519. These cases proceed on the ground that, on given circumstances, the law directs a certain judgment to be rendered; and that it can not be varied by the form of the entry. So in the case at bar, the law directed, on this court being dissatisfied, that the whole report should be referred back. It was so referred back by the rule, and the subsequent words of confirmation could not change the legal effect. Strictly the whole stood open. See per Lord Ellenborough, C. J., in Strachey v. Turley, 11 East, 200.

The motion to discontinue is granted.