In re The Commissioner of Public Works of New York

111 A.D. 285, 97 N.Y.S. 503, 1906 N.Y. App. Div. LEXIS 144

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1906
• Status: Published

Opinion

Clarke, J. :

■ This is a'n appeal by the city of Hew York from .an order of the Special Term of the Supreme Court denying the motion to confirm the second partial and"separate report of commissioners of estimate, and returning said report to said commissioners with certain directions, and for a further report in accordance therewith. It is claimed that said order is not appealable.

These proceedings were instituted on the petition of the commissioner of public works in behalf of the mayor, aldermen and commonalty of the city of'Hew York, pursuant to chapter 147 of the Laws of 1894, entitled “ An act to provide for the construction 'of a bridge over thá Harlem river in the city of Hew York.” •

. Section 4 of said act authorizes' the commissioner of public works; with the consent and Approval of the board of estimate and apportionment, and on behalf of -the city,- to acquire title in fee to any land which he may deem necessary for the purpose of the construction of the bridge and approaches, and provides that “ the provisions of law relating to the taking of private property for public streets or places in the said city are hereby made applicable as far as may be necessary to the acquiring of the said land as aforesaid. * * The awards to be made- for these lands and the expense of the condemnation proceedings are by section 4 of the act made part of the expense of the construction of the bridge, which, under section 3 of the act, is to be borne by the city. The latter section "has been amended by chapter 607 of the Laws of 1901. ' -

By an order of the Special Term, dated December 31,1895, commissioners of estimate were appointed to perform the duties required of them by law. During the progress of the proceedings the Legislature passed chapter 664 of the Laws of 1897, amending section 4 of the act of 1894, under which the' proceedings, were commenced, but no change was made in the provision above cited as to the procedure of the commissioners of estimate under the so-called, street opening laws. The taking of testimony commenced March 2, 1896, and the report of the commissioners was dated March 3, 1899. Thereafter, by Order of the Special Term, the report was referred back to the commissioners with certain directions, and they again reported in accordance with those directions under date of October 29, 1901. The order appealed from is dated February 25, 1904. The first Greater Hew York charter, by its terms, took effect upon the 1st day of January, 1898. The revised charter went into effect January 1,1902. To determine this question of appealability it becomes necessary, therefore, to consider what were the provisions of law governing street opening proceedings at the time of the passage of " chapter 147 of the Laws of 1894, authorizing the construction of the bridge, and as now existing.

The law governing the opening of streets in the city of New York (Revised Laws of 1813, chap. 86, § 177 et seq.) has been upon the statute books with substantially the. same provisions for upwards of ninety years, was embodied in the Consolidation Act (Laws of 1882, chap. 410, § 963 et seq.) and continued in the Greater New York charter (Laws of 1897, chap. 378, § 970 et seq.), and the revised charter (Laws of 1901, chap. 466, § 970 et seq). In many proceedings to acquire private property for public uses not coming strictly within the provisions as to “ streets, avenues, squares or public places,” the laws authorizing.such proceedings' have provided that the said proceedings should be conducted in the manner prescribed in and subject to the provisions of said daw. It may be said that such law was the Ibcal law of condemnation,for "such purposes in the city of Hew York. Section 990 of the Consolidation Act — drawn from section 118 of chapter 86 of the Revised Laws of 1813—as amended by section 12 of chapter 660 of the Laws of 1893, and in force at the time of the commencement-of the proceeds ings herein, provided that “The application for the confirmation'o.f'. the report shall be made to the Supreme Court at a term- thereof held in the city of Hew York, - * *' * . The said court shall by rule or order, after hearing any matter which may be alleged against the same, either confirm -the said report or refer the same to the samé commissioners for revisal and correction or to new commissioners to be appointed, by the said court to reconsider the subject-matter thereof, ■ and the said 'commissioners to whom the said .report shall be so referred shall return the same report corrected .and revised, or- a new report to be made by them in the premises to the said' court without unnecessary delay; and the same, on being so returned shall be so confirmed or again referred by the said court in manner aforesaid, as right -and justice shall, require, and so- from time "to time until a report shall be made or returned in the premises, which the. said court shall confirm; and such report when so confirmed by the . said court, shall b,e final and conclusive, as well upon,the. said mayor, ■ aldermen and' commonalty of the city of Hew York as upon the' owners, lessees, persons and parties interested .(in) and entitled Unto, the lands, tenements, hereditaments and premises mentioned;in the said report, and also upon all other persons whomsoever,”

On an appeal from an order confirming the report of commissioners, the Court of Appeals, in Matter of Commissioners of Central Park (50 N. Y. 493), held that the provisions of the Code of Procedure governing appeals to that court did not apply. Judge Allen said : “The Code is broad enough-to give an appeal to this court from the order confirming the report of the commissioners. It was made in a special proceeding, - and does afiect substantial rights;-and is final (Code, § 11, ,3

*)". If, therefore, this-pro vision of the Code controls, this court has jurisdiction of the appeal.” Referring to section 178 of the act of 1813, cited supra, the learned judge proceeded: “ Language could not more plainly indicate the intention of the Legislature, that every question connected with the estimate and assessment, everything that could in any form.be litigated before and passed upon by the commissioners should be finally .and conclusively determined by the Supreme Court without further appeal or right of review or ulterior litigation. * * * This provision is not repealed or affected by the general provisions of the Code* prescribing the jurisdiction of this court. * * * A special and local statute providing for a particular case or class of cases is not partially repealed or amended as to some of its provisions by a statute general in its terms, provisions and application, unless the intention of the Legislature to repeal or alter the particular law is manifest, although the terms of the general act would, taken strictly, and but for the special law, include the case or cases provided for by it.” The appeal was dismissed.

In Matter of Board of Street Opening, etc. (111 N. Y. 581), there was an appeal from an order confirming the report,of commissioners. The authority to establish the public place in question was given by chapter 451 of the Laws of 1884. ' The 2d section of that act provided that proceedings to acquire the title to the lands described should be taken “ in the manner prescribed (in) and subject to all the provisions of section nine hundred and fifty-five' of- chapter four hundred and ten of- the laws of eighteen hundred and eighty-two,” known as the Consolidation Act. Judge Gray said: “The procedure thereby prescribed has been-construed to preclude an appeal to this court from the order of the Supreme Court confirming the report of the commissioners. (Matter of Department of Public Parks, 85 N. Y. 459; Matter of Commissioners of Central Park, 50 id. 493.) The theory underlying this construction is that these proceedings form an independent and complete system especially created by the Legislature and not connected with or controlled by the provisions of the Code of Civil Procedure† applicable to appeals to -this court.” And the appeal was dismissed.

In Mott v. Eno (181 N. Y. 365) Judge Gray said: •“ Chapter 86 of the Revised Laws of 1813, commonly known as. the ‘ Street Opening Act,’ had provided the methods and procedure for the opening of ‘any street, avenue, square or. public place’ laid out by the commissioners under theaetef 1807* whenever the municipal authorities were desirous of doing so. * * * This ** * * act and its various amendatory, acts have since furnished the legal machinery in. all cases of street openings, and it lias been held with respect to it that ‘ language could not more plainly indicate the intention of the Legislature that every question connected with the estimate and assessment, everything that could in any form be litigated before and passed upon by the commissioners, should be finally and conclusively determined by the Supreme Court.’ ”' •

• Therefore, prior to the enactment' of the Greater Hew York charter, it had been authoritatively determined by the Court of Appeals that the Street Opening Law wasA special and local law, complete within itself, and that the provisions of the Code were' not to be read into' it so as to allow an appeal to the Court of Appeals from a final order confirming the report of commissioners. It had also been settled that an appeal did lie from an order of the Special Term confirming the report of commissioners to the General Term. (Matter of Kingsbridge Road, 4 Hun, 599; affd. on the opinion of Davis, P. J., below, 62 N. Y. 645.) Presiding Justice Davis, reviewing the composition of the Supreme Court at the time óf the passage of the act of 1813 and-subsequent legislation, held that chapter 270 of the Laws of 1854, which provided in section 1 that “ an appeal may.be taken.to the General Term * * .* from any judgment, order, or final determination made at a Special Term * "* * in any special proceeding therein,” did operate to modify the effect of_the provision of section 178 of the original act which made the order at Special Term conclusive. He cited Matter of Canal & Walker Streets (12 N. Y. 406), where Gardiner, Ch. J., held'thatindependently of the "statute of -1854, the General Term acquired nó jurisdiction of the proceedings but that under it an appeal lay to the General Term from the Order of confirmation..

Section 990 of . the Consolidation Act (as amd. supra) has substan-. tially been re-enacted as section 986 of the Greater Hew" York charter and is the same in the revised 'as in the original charter. New provisions expressly authorizing appeals to the Appellate Division and to the Court of Appeals were for the first time inserted in these street opening statutes. (Greater N. Y. Charter, §§ 988, 989; Revised Greater N. Y. Charter, §§ 988, 989.) By section 988 of the Greater New York charter it was provided that “The City of New York or any party or person affected by the said proceeding and aggrieved by the said report when confirmed as aforesaid, may appeal to the Appellate Division of the said court. Such, appeal shall be taken and heard in the manner provided by the Code of Civil Procedure, and the rules and practice of the said court in relation to appeals in special proceedings, and such appeal shall be heard and determined by such Appellate Division upon the merits, both as to matters of law and fact. * * * When an order confirming a report shall be reversed upon appeal, the commissioners to whom such report shall be referred for amendment,correction or revisal, shall have power to make such additional assessment as may be necessary.” These provisions were continued without change in the revised Greater New York-charter.

Here is a provision governing practice, especially providing for an appeal from the order confirming the report of commissioners. Though not in the law at the time of the commencement of the proceedings,, it was enacted during their continuance and was in force at the time the report was made, at the time the order appealed from was entered and is in force at the present time. Being a provision respecting practice it is to be applied to the case at bar. The appellant claims that section 1356 of the .Code of Civil Procedure applies. That section provides that “ an appeal may be taken to the Appellate Division of the Supreme Court from an order affecting a substantial right, made in a special proceeding at a Special Term or a Trial Term of the Supreme Court.” But section 1361 of the said Code provides that “ the proceedings upon an appeal, taken as prescribed in this title,* are governed by the provisions of this act, and of the General Pules of Practice relating to an appeal in an action, except as ■ otherwise specially prescribed by law?’ As the appeal is specially prescribed by law to be from the order confirming the report it does not seem that said section 1356 can be invoked. We are of opinion that as a most elaborate and elastic scheme has been provided for correcting the errors and mistakes of the commissioners by providing for resubmission' to them' with instructions by the court at Special. Term, there did not exist under the old law any right of appeal from these incidental orders. If so,' the very thing sought to be accomplished by the specific powers conferred of correction under direction of the court would have been of little or no - avail. As there was no appeal given in terms by the law before the Greater Hew York charter, the right to appeal to the General Term read into the statute of 1813 by the decision of the. court,' based upon the act of 1854, was from this final order -of confirmation only.. As to the- present state of the law, it is clear that as the appeal is specifically -prescribed tó be from the order confirming the report, •there can be no appeal from the order denying confirmation and sending the report back for revisal or correction. Exjpressio unius ?st exolusio alter ius. There "is no reason for such interlocutory appeal and the very nature of the proceedings makes it unwise to allow it.

The appeal should be dismissed, With ten dollars costs and disbursements to the respondents.

■ O’Brien, P. J., Laughlin and Houghton, JJ,, concurred.

Appeal dismissed, with ten dollars costs and disbursements to respondents, •

Code Proc. § 11. subd. 3.—[Rep

See Code Proc. § 11 et seq.—[Rep.

See Code Civ. Proc. § 190. et seq.— [Rep.

Laws of 1807, chap. 115.— [Rep.

Code Civ. Proc. chap. 12, tit. 5.—[Rep.