McCormack v. City of Brooklyn
| Decision Date | 17 January 1888 |
| Citation | 108 N.Y. 49,14 N.E. 808 |
| Parties | McCORMACK v. CITY OF BROOKLYN. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from general term, city court of Brooklyn.
Action by plaintiff, Ruth M. McCormack, for the value of certain lands taken by the city of Brooklyn from plaintiff's assignor. Plaintiff had judgment at general term, and defendant appeals.
Almet F. Jenks, for appellant.
J. M. & A. H. Van Cott, for respondent.
The effect of the statute ‘to widen and improve North Second street in the city of Brooklyn’ (Laws 1871, c. 559) was to deprive the assignor of the plaintiff of his land, and commit the same to the city, burdened with the duty of providing compensation for the land so taken. Sage v. City of Brooklyn, 89 N. Y. 189. The learned counsel for the appellant, however, claims that the principle on which that case was decided does not apply, and puts his contention upon a manifest difference in the scheme formulated by the statute above cited from that of the statute (Laws 1868, c. 631) then under consideration.
Under the act of 1868, supra, a single board, that of commissioners of estimate and assessment, ascertained the damages of the land-owner, and apportioned and assessed the same upon the property benefited within an assessment district already fixed by the commissioners of Prospect park. The balance of damages sustained over the benefits derived by him from the improvement constituted the award, and, after confirmation, was the sum for which the city was liable, and which it was expressly provided (section 16, tit. 4, Act 1854, p. 867) the city comptroller should pay. The act of 1871 commits to commissioners the duty of ascertaining the damages incurred by, and the compensation to be paid to, land-owners, but does not empower them to make any assessment thereof. And the claim of the defendant is that by adopting the provisions of the charter in regard to street openings (Laws 1854, supra, amendments of 1862; Laws 1862, p. 189, § 15) the statute of 1871, supra, imposes that duty upon the board of assessors of the city, who are to spread the same over the lands and premises benefited by the improvement within the district of assessment fixed by them, in proportion to benefits thereto; and that until that body acts upon, and deals with, and reports the matter, no liability of payment attaches to the city. If that is so, the plaintiff in 1887 is little, if any, better off than her assignor was in 1871, when, by the peremptory action of the supreme law of the land, his property was taken and devoted to the uses of the municipality, which is appellant here. Such a result, in view of a constitutional provision which in such cases requires compensation, and in view of a statute which evidently provided for it, could hardly be anticipated. Nor does the law require it. The argument of the appellant assumes, improperly as I think, that by reason of the provision in the act of 1871 (section 2) which refers to the laws then in force in relation to the opening of streets in the city of Brooklyn, the rights of land-owners to awards made in their favor could not become fixed until action was had by the assessors in ascertaining and stating balances arising from damages and benefits. The act of 1871 (section 2, supra) directs the commissioners to ascertain ‘the amount of damages sustained by, and the compensation to be paid to, all persons whose property shall be taken or affected by the statutory improvement.’ It is obvious, from every provision of the act, that in each step of the proceedings made necessary by the appropriation of land under the statute, the legislature intended the city should be the actor. It provides, first, that the street commissioner shall cause a map of North Second street, as the same is widened by statute, ‘to be made and filed in his office,’ that the grade of the street so widened shall be altered, and that the grade lines of certain other streets intersecting with it shall be made to conform thereto; defines the width of the carriage-way and sidewalks, and names the width which may be allowed for stoops, doorsteps, and areas of adjoining houses, and leaves its pavement to be of such sort as in the discretion of the water commissioners of the city shall seem best. The learned trial court found that the street commissioners complied with the statute in regard to the map of the street as widened, and that proper maps, showing the various grades above referred to, were made and filed. That the city paid for the making of the maps. The statute (Laws 1871, § 2) also makes it the duty of the corporation counsel to procure the appointment of commissioners to ascertain the expenses of the map and the drawings, and compensation to be paid to the land-owners. The trial court found that this was done, commissioners appointed, who reported, among other things, the damages sustained by the plaintiff's assignor, by reason of the taking of his land and...
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...in terms described therein, which is not claimed here. Donnelly v. City of Brooklyn, 121 N. Y. 9, 24 N. E. 17;McCormack v. City of Brooklyn, 108 N. Y. 49, 14 N. E. 808;Genet v. City of Brooklyn, 99 N. Y. 300, 1 N. E. 777;Sage v. City of Brooklyn, 89 N. Y. 189;Spears v. Mayor, etc., 87 N. Y.......
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