Mitchell v. Village of White Plains

New York Supreme Court

Mitchell v. Village of White Plains

16 N.Y.S. 828, 69 N.Y. Sup. Ct. 231, 41 N.Y. St. Rep. 787, 62 Hun 231, 1891 N.Y. Misc. LEXIS 2270

CourtNew York Supreme Court

DecidedDecember 14, 1891

StatusPublished

Cited by4 cases

This text of 16 N.Y.S. 828 (Mitchell v. Village of White Plains) 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.

Bluebook

Mitchell v. Village of White Plains, 16 N.Y.S. 828, 69 N.Y. Sup. Ct. 231, 41 N.Y. St. Rep. 787, 62 Hun 231, 1891 N.Y. Misc. LEXIS 2270 (N.Y. Super. Ct. 1891).

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Opinion

Pratt, J.

That the award was made to the husband of the plaintiff, instead of to the plain tiff, would not invalidate the proceedings to open tie highway in dispute in this case. The plaintiff would be entitled to the award despite the fact the owner was erroneously named in the report of the commissioners of estimate and appraisal, nor would the fact that she has not received the award be fatal, provided that, under the statute authorizing this improvement, there was an adequate remedy given her to enforce the payment of the award had she proceeded in time. This highway was authorized to be laid out by chapter 552, Laws 1868. The commissioners named in the act are given the same powers as those vested in a prior act for the laying out of another highway in Westchester county, (chapter 408, Laws 1865,) “except that the damages awarded for the taking the land necessary for laying out, making, grading, and regulating said Mamaroneck avenue shall be paid by assessing the amount thereof upon the strip of land lying within five hundred yards of either side of said avenue.” The highway extends through several towns. By the act the money necessary to grade and improve the avenue was to proceed from the issue of bonds by such towns. The act of 1865 directed the commission constituted by that act to pay the awards, and such commission doubtless could have used any funds for- that purpose. But by the exception quoted, the commissioners under this act are deprived of such power, and limited to paying awards from one single source; that is, the local assessment. The act, therefore, seems to fall expressly within the principle laid down in Sage v. City of Brooklyn, 89 N. Y. 189: “A remedy for compensation contingent upon the realization of funds from taxation for benefit within a limited assessment district does not meet the constitutional requirement.” It follows that the act of 1868, so far as its provision for compensation for lands taken for the improvement is limited to the local assessment, is unconstitutional and void. The judgment appealed from should be reversed, and a new trial ordered, costs to abide event. All concur.

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Pratt, J.

That the award was made to the husband of the plaintiff, instead of to the plain tiff, would not invalidate the proceedings to open tie highway in dispute in this case. The plaintiff would be entitled to the award despite the fact the owner was erroneously named in the report of the commissioners of estimate and appraisal, nor would the fact that she has not received the award be fatal, provided that, under the statute authorizing this improvement, there was an adequate remedy given her to enforce the payment of the award had she proceeded in time. This highway was authorized to be laid out by chapter 552, Laws 1868. The commissioners named in the act are given the same powers as those vested in a prior act for the laying out of another highway in Westchester county, (chapter 408, Laws 1865,) “except that the damages awarded for the taking the land necessary for laying out, making, grading, and regulating said Mamaroneck avenue shall be paid by assessing the amount thereof upon the strip of land lying within five hundred yards of either side of said avenue.” The highway extends through several towns. By the act the money necessary to grade and improve the avenue was to proceed from the issue of bonds by such towns. The act of 1865 directed the commission constituted by that act to pay the awards, and such commission doubtless could have used any funds for- that purpose. But by the exception quoted, the commissioners under this act are deprived of such power, and limited to paying awards from one single source; that is, the local assessment. The act, therefore, seems to fall expressly within the principle laid down in Sage v. City of Brooklyn, 89 N. Y. 189: “A remedy for compensation contingent upon the realization of funds from taxation for benefit within a limited assessment district does not meet the constitutional requirement.” It follows that the act of 1868, so far as its provision for compensation for lands taken for the improvement is limited to the local assessment, is unconstitutional and void. The judgment appealed from should be reversed, and a new trial ordered, costs to abide event. All concur.

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Bluebook (online)

16 N.Y.S. 828, 69 N.Y. Sup. Ct. 231, 41 N.Y. St. Rep. 787, 62 Hun 231, 1891 N.Y. Misc. LEXIS 2270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-village-of-white-plains-nysupct-1891.

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