Hubbard v. Sadler

• Citation: 104 N.Y. 223,10 N.E. 426
• Parties: HUBBARD v. SADLER and others.
• Decision Date: 18 January 1887
• Court: New York Court of Appeals

104 N.Y. 223

10 N.E. 426

HUBBARD

v.SADLER and others.

Court of Appeals of New York.

January 18, 1887.

Appeal from general term, supreme court, Second department.

Action brought by Peter Wyckoff, and, after his death pending the action, revived in the name of Harmanus B. Hubbard, his executor, to restrain defendants from entering upon the lands of Wyckoff, in the town of New Utrecht, Kings county, to open a street through them. Defendants are grading commissioners and a contractor, and claimed to act under a resolution of the board of supervisors of King's county. The power of the board of supervisors in relation to the opening and construction of the road is derived from Laws 1875, c. 482, as amended by Laws 1880, c. 365, and Laws 1881, c. 554.

John D. Pray, for appellant, claimed, among other things, that the proceedings for the taking of plaintiff's land, under resolution No. 2 of the board of supervisors of Kings county, were illegal and void for the reason that no adequate provision was made for compensating the plaintiff for the land proposed to be taken.

Wm. Sullivan, for respondent.

FINCH, J.

The constitutional question raised in this case was decided against the views of appellant in Re Church, 92 N. Y. 1. It is now suggested that a difficulty exists not then considered, in the alleged fact that the act of 1875, (chapter 482,) with its amendments, does not authorize the supervisors to issue bonds in order to obtain money with which to pay awards to landowners, and, inferentially at least, forbids such issue. We did not in the case cited discuss that question, but practically decided it when we held that the public purse stood behind the awards, and guarantied their payment. The statute as amended (Laws 1881) gives authority to the supervisors, as a local legislature, to lay out and construct certain streets and avenues, and to provide by limited or general assessment for the payment of damages awarded for property taken. Under this authority the supervisors acted. They provided, first, for an assessment district of property benefited, upon which, as an area of taxation, the cost of the improvement was imposed; but, recognizing its possible insufficiency, further provided that any deficiency of principal or interest upon the debt incurred by the awards should be paid by general taxation. It is the mode of reaching rather than the substance of this result that is the subject of criticism. The resolution authorizes the issue of short-term bonds, none running longer than six years, and some only two, upon which to borrow money for the payment of the awards. The proceeds of the loan were to be at once devoted to such payment, and the town to be reimbursed by the local assessments, and, in case of their deficiency, by general taxation. To effect this result, the resolution provides ‘that any deficiency required to meet the principal and interest on said bonds shall be made a tax on the real and personal estate of the town.’

It is now argued that a deficiency upon the bonds is all that is provided for, and payment is due to the land-owner from their proceeds alone, and, if there can be no bonds, there can be no payment. But the local legislature authorized explicitly their issue, and if in doing so it acted within the scope of the statute committing to it upon some subjects, and within some limits, the powers and duties of a legislature, that is an end of the question. Of course, it is not doubted that the state may confer upon a municipal crporation the power to borrow money if otherwise it did not exist. What it could itself do in laying out, opening, and grading streets and avenues like the one in question it could authorize the local legislature to do, with all its own discretion. It did confer such authority in broad and general terms by the act...