Schroeder v. City of New York

Decision Date25 January 1962
Citation225 N.Y.S.2d 210,180 N.E.2d 568,10 N.Y.2d 522
Parties, 180 N.E.2d 568 Madeline C. SCHROEDER, Appellant, v. CITY OF NEW YORK, Respondent.
CourtNew York Court of Appeals Court of Appeals

Louis B. Scheinman, Woodbourne, for appellant.

Leo A. Larkin, Corp. Counsel, New York City (Theodore R. Lee, Kingston, Seymour B. Quel, New York City, and William A. Kaercher, Kingston, of counsel), for respondent.

FULD, Judge.

On this appeal, before us as of right on constitutional grounds, we are called upon to decide whether the notice provisions of the Water Supply Act (Administrative Code of City of New York, ch. 41, tit. K) contravene requirements of the Due Process Clause of the Federal Constitution (5th and 14th Amdts.; see, also, N.Y.Const. art. I, § 6).

The City of New York, the defendant herein, early in 1952 instituted a proceeding, pursuant to the Water Supply Act, to acquire the right to divert a portion of the Neversink River in Orange County; in June, the city became vested with such a right, and about a year later, in June of 1953, work on the actual diversion commenced. Seven years thereafter, the plaintiff, a riparian owner of a parcel of land on the Neversink, brought this action to enjoin the city from diverting the river upstream from her property. It was her position, as reflected in her complaint, that it was not until 1959 that she learned that the city 'had acquired any portion of her property' and that she had a right to file a claim; that the diversion damaged her property and, if the diversion continued, would occasion further damage; that she had no notice of the city's proceeding; that the notice provisions of the Water Supply Act are constitutionally inadequate; and that, consequently, the city acquired no right to divert water from the river and should be restrained from so doing.

The city, after serving an answer, moved for judgment on the pleadings (Rules Civ.Prac., rule 112), on the ground (among others) that the plaintiff's action was barred by her failure to file a claim, as required by the Water Supply Act (Administrative Code, § K41-18.0), within three years from the time title vested in the city or within three years from the time of the actual diversion, whichever happened to be later. The court at Special Term, deciding the motion in favor of the city, dismissed the complaint and the Appellate Division unanimously affirmed the resulting judgment. As already indicated, the plaintiff appeals to this court as of right.

Due process does not, of course, require or insist upon personal service in every type of case. Constitutional demands are satisfied if the notice provided for (and given) is 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865; see, also, Walker v. Hutchinson City, 352 U.S. 112, 115, 77 S.Ct. 200, 1 L.Ed.2d 178.) And, in determining whether the statutory notice provided for is just and reasonable, 'reference' must necessarily be had 'to the subject with which the statute deals.' (American Land Co. v. Zeiss, 219 U.S. 47, 67, 31 S.Ct. 200, 207, 55 L.Ed. 82.)

With controlling principles in mind, we believe that the notice provided for by the Water Supply Act satisfies the demands of due process of law. Not only does that statute (the predecessor of which was enacted in 1905) call for frequent publication in 'public newspapers' once a week for six weeks in two newspapers published in New York City and in two papers published in each county in which the real estate affected is located but it also provides for the posting of handbills, likewise for a period of six weeks, 'in at least twenty conspicuous places on the line of the aqueduct or in the vicinity of the real estate so to be taken or affected' (§ K41-8.0).

These requirements were fully complied with notice of the proposed diversion of the Neversink River was published in appropriate newspapers and, as noted by the Appellate Division, 'handbills were posted in at least 20 conspicuous places in the vicinity of the real estate affected'. 1 Moreover, since we deal with real property (cf. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 316, 70 S.Ct. 652, 94 L.Ed. 865, supra), it is of considerable significance that the effect of the challenged diversion was clearly apparent long before the expiration of the three-year period within which the plaintiff was required to file her claim. In sum, as Justice Reynolds, speaking for a unanimous Appellate Division, observed, 'the publications, posting and the patently visible effect of the diversion proceedings on the Neversink over a 3 year period would constitute sufficient notice to meet * * * (constitutional) requirements'. 2

In the light of what we have written, it is hardly necessary to say that the present case, concerned as it is with notice respecting the tangible and the visible, is quite unlike the Mullane case (339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, supra).

The judgment appealed from should be affirmed, with costs.

DYE, Judge (dissenting).

The basic issue on this appeal is whether technical compliance with the notice provisions of the New York City Water Supply Act is constitutionally adequate to satisfy the requirements of due process for the taking of property or an interest therein. We think not and feel obliged to express our dissent from the decision about to be rendered.

The appellant is the owner in fee of premises designated on the appropriation map for the Delaware project as parcel No. 424, Neversink riparian section No. 4 in Deerpark, Orange County, which is about 25 miles downstream from the site of the Neversink Dam and Reservoir in Sullivan County. It is alleged that as a result of such public work her property was adversely affected and seriously damaged. Her claim for compensatory damage, like that of many others, filed more than three years after the vesting, has been rejected for untimeliness (Administrative Code, § K41-18.0).

The New York City Water Supply Act (Administrative Code of City of New York, ch. 41, tit. K), prescribes the procedures to be followed by the Board of Water Supply in acquiring real estate, easements and rights affecting real property required for its water supply system. Section K41-8.0 relates to the manner in which notice shall be given for the appointment of commissioners of appraisal for the purpose authorized.

In pertinent part that section provides: 'The corporation counsel shall give notice in the City Record, and in two public newspapers published in the city of New York and in two public newspapers published in each other county in which any real estate laid out on such maps may be located, and which it is proposed to acquire in the proceeding, of his intention to make application to such court for the appointment of commissioners of appraisal * * *. Such notice shall be so published, once in each week, in each of such newspapers, for six weeks immediately previous to the presentation of such petition; and the corporation counsel shall in addition to such advertisement cause copies of the same in hand bills to be posted up, for the same space of time in at least twenty conspicuous places on the line of the aqueduct or in the vicinity of the real estate so to be taken or affected.'

When the city undertook the construction of the 'Delaware Project' for the use of its water supply system it, technically, complied with all prescribed procedures including the publication and posting of notice of the application for the appointment of commissioners of appraisal.

The publication in Orange County was made in newspapers situate in the rural communities of Chester and Warwick located many miles from the subject property and with no circulation in the community where the premises were located although at the time there were available newspapers in the nearby communities of Port Jervis and Middletown. We note too that 22 handbills were posted on trees along highway Route 209 and on trees along the easterly and westerly banks of the Neversink River for a distance of about 100 feet on either side of certain bridge crossings. The posting and publication were done in the month of January and, although in compliance with the letter of the statute, such publication and posting in such remote places at a time when it was known...

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