In re Fuller

New York Supreme Court

In re Fuller

28 N.Y. Sup. Ct. 497

DecidedJune 15, 1880

StatusPublished

This text of 28 N.Y. Sup. Ct. 497 (In re Fuller) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Fuller, 28 N.Y. Sup. Ct. 497 (N.Y. Super. Ct. 1880).

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Opinion

Barrett, J.:

We agree with the court below, that the Central Park Commissioners were originally authorized to make the improvements in question. By the act of 1865 (ch. 565) these commissioners were vested with exclusive jurisdiction “ to lay out streets, roads, public squares and places within that part of the city of New York to the northward of the southerly line of One-Hundred-and-Fifty-fifth street.” The intention, undoubtedly, was to cover this street. We also agree that the commissioners retained this power until its transfer to another department, under an act to which we are about to refer.

But we do not concur in the opinion that the assessment should be vacated, because the commissioners directed the execution of the work by their treasurer. It is not necessary to consider the question whether this was an unauthorized delegation of power, for the reason that the work was not done by their treasurer, but by the Commissioner of Public Works. This fact seems to have been overlooked. It appears that before any work was done, and, indeed, before the contract was made, exclusive jurisdiction over the subject was transferred to the Department of Public Works. (Laws 1872, ch. 872.) The contract was thereupon made by the commissioner of that department and the work done under his sole authority. It is true that the commissioner entered into this contract because of his belief that one Cummings was entitled to it under the previous action of the Park Department. But that is immaterial. The important fact is that he duly exercised his authority, under the existing law. As was said by Johnson, J., in Sander v. Plass (28 N. Y., 476), “jurisdiction does not depend upon the intention of the officer or tribunal, undertaking to act in a given ease. The question is, does the law authorize the act?” (See, too, State v. Jersey City, 3 Dutch., 493; Davis v. Bruce, 82 Ill., 542.)

In our judgment, the work for which this assessment was laid was done by the Commissioner of Public Works, in conformity to law.

[500]*500The various other objections made by the petitioner were properly overruled.

The order should therefore be reversed, -with $10 costs, and disbursements of the appeal, and the application denied.

Davis, P. <L, and Ingalls, J., concurred.

Order reversed, with $10 costs, and disbursements, and applicar tion denied.

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Barrett, J.:

We agree with the court below, that the Central Park Commissioners were originally authorized to make the improvements in question. By the act of 1865 (ch. 565) these commissioners were vested with exclusive jurisdiction “ to lay out streets, roads, public squares and places within that part of the city of New York to the northward of the southerly line of One-Hundred-and-Fifty-fifth street.” The intention, undoubtedly, was to cover this street. We also agree that the commissioners retained this power until its transfer to another department, under an act to which we are about to refer.

But we do not concur in the opinion that the assessment should be vacated, because the commissioners directed the execution of the work by their treasurer. It is not necessary to consider the question whether this was an unauthorized delegation of power, for the reason that the work was not done by their treasurer, but by the Commissioner of Public Works. This fact seems to have been overlooked. It appears that before any work was done, and, indeed, before the contract was made, exclusive jurisdiction over the subject was transferred to the Department of Public Works. (Laws 1872, ch. 872.) The contract was thereupon made by the commissioner of that department and the work done under his sole authority. It is true that the commissioner entered into this contract because of his belief that one Cummings was entitled to it under the previous action of the Park Department. But that is immaterial. The important fact is that he duly exercised his authority, under the existing law. As was said by Johnson, J., in Sander v. Plass (28 N. Y., 476), “jurisdiction does not depend upon the intention of the officer or tribunal, undertaking to act in a given ease. The question is, does the law authorize the act?” (See, too, State v. Jersey City, 3 Dutch., 493; Davis v. Bruce, 82 Ill., 542.)

In our judgment, the work for which this assessment was laid was done by the Commissioner of Public Works, in conformity to law.

[500]*500The various other objections made by the petitioner were properly overruled.

The order should therefore be reversed, -with $10 costs, and disbursements of the appeal, and the application denied.

Davis, P. <L, and Ingalls, J., concurred.

Order reversed, with $10 costs, and disbursements, and applicar tion denied.

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