In re Opening of One Hundred & Sixtieth Street

13 N.Y.S. 51, 36 N.Y. St. Rep. 516, 1891 N.Y. Misc. LEXIS 951

• Court: New York Supreme Court
• Decided: January 13, 1891
• Status: Published

Opinion

Brady, J.

It was stated upon the argument herein, and not denied, that, although this appeal was in progress, yet, in pursuance of the order from which it was taken, the commissioners had received the objections of the property owners, and heard the testimony as to dedication; that the proofs had been submitted; and that the entire matter was before them for decision. The matter was sent back to the commissioners by an order of the special term, Justice Donohue presiding, and, as we have seen, for the purpose of making substantial awards to the respondent, William F. Buckley, and upon the proposition that there had been no dedication by him of a strip of land referred to as “One Hundred and Sixtieth Street,” which it was proposed to take in this proceeding. That question was considered elaborately at the general term upon an appeal from that order, (see opinion of Presiding Justice Van Brunt, on the appeal, 48 Hun, 488,) and the result was that the order was affirmed; that is to say, the matter was sent back to the commissioners that they might make substantial awards to the respondent, William F. Buckley, for the property which he owned that the city desired, and which had not been dedicated by him. The application to the special term was for liberty to introduce evidence on the question of dedication, resting upon the facts stated in the appeal, and to which reference has been made. The learned justice in the court below was impressed by what he considered the restriction caused by the decision of the general term, but thought that, inasmuch as the order did not expressly authorize the commissioners to receive the objections and testimony offered by the petitioners, it was questionable whether it was not a bar to the receipt of the same, thinking that, if that view prevailed, the petitioners could only obtain relief by a modification of the order of the general term, if that tribunal thought fit to make it; but that, in view of the constitutional and statutory right of the petitioner to be heard before he could be lawfully compelled to pay an assessment, it was doubtful whether the court had the power to make an order which would deprive him of the right to have his objection and testimony received upon a further consideration of the matter by the commissioners. It was thought by the learned justice that under these circumstances there was some force in the argument that, although the order did not expressly authorize the commissioners to receive such objections and testimony, it did not prevent their doing so. It cannot be questioned that there is merit in the application, for the reason that, if the dedication can be established, it would be unjust to make the petitioner, or any persons assessed, pay for the value of the land supposed to be owned by Mr. Buckley. The reasonable view of the decision of the general term, in contemplation of the provisions of the consolidation act of 1882 (section 986) would be that the decision made related entirely to the facts as they then appeared, having no prospective effect or application, and leaving the subject of dedication to such further examination as might be made of it by the commissioners in the exercise of their duty. Technically, it may be said with great propriety that the making of a substantial award to the respondent, Buckley, would necessarily involve an examination as to his title to the premises for which it should be made, and especially in reference to section 889 of the consolidation act, which provides that, after hearing any matter which may be alleged against the same, the court shall either confirm the report, or refer the same to the commissioners for revisal and correction, or to new commissioners to be appointed by the court, to reconsider the subject-matter thereof. It is contended, it is true, that the words “for revisal and correction” indicate that the reference back to the commissioners was to be for the purpose or to the extent only to which the court directs and orders that the report be revised.and corrected; but the whole object of sending reports in kindred proceedings back to commissioners is to secure the rights of all parties, even although it involve a further examination of the facts and circumstances naturally, necessarily, and legally involved. For these reasons it is thought that the order from which the appeal has been taken, made, as it was, in justice, and proper, as it was, ex debito justitia, was no encroachment upon the decision of the general term, was justly made, and should be affirmed. All concur.