141 Misc. 15, In re Municipal Garage in and for City of Utica

Citation:141 Misc. 15, 252 N.Y.S. 18
Party Name:In the Matter of the ACQUISITION OF LANDS for the Purpose of a Municipal Garage in and for the City of Utica [a1]
Case Date:September 03, 1930
 
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141 Misc. 15

252 N.Y.S. 18

In the Matter of the ACQUISITION OF LANDS for the Purpose of a Municipal Garage in and for the City of Utica [a1]

Supreme Court of New York, Oneida County.

September 3, 1930

Application to discontinue and abandon proceedings in condemnation of real property.

The application, therefore, is denied, without costs. Ordered accordingly.

SYLLABUS

On this application to discontinue and abandon proceedings in condemnation of real property selected as a site for a municipal garage in the city of Utica, it appears that subsequent to the confirmation of the award of the commissioners of appraisal the mayor of said city, in keeping with a campaign pledge and upon taking office, procured the rescission of the ordinance pertaining to the condemnation of the property after having addressed the common council in several messages and special communications. While the later ordinance did not specifically instruct the corporation counsel of said city to apply to the court for leave to discontinue and abandon the proceeding, the evidence warrants the inference that the common council, in the adoption of the ordinance, intended to instruct the corporation counsel to apply for such leave within the meaning of section 18 of the Condemnation Law. Moreover, the mayor was empowered to issue the call for the special meeting of the common council at which said ordinance was enacted (Second Class Cities Law, § 54).

Up to the granting and entry of the final order confirming the majority report of the commissioners the city could have discontinued and abandoned the proceeding without leave of the court, but after the granting and entry of such final order retreat by the city becomes more difficult and will be permitted only in the discretion of the court upon just cause shown. After the entry of the final order confirming an award in condemnation, the compensation awarded the property owner becomes unalterably fixed and such owner has a vested right to such compensation and can enforce payment according to the statute under which the condemnation proceedings were instituted.

The amount of the award cannot be put forward as a reason for the abandonment of the proceeding for it was settled on the motion to set aside the report by the order of confirmation.

Claims that the site is not favorably located; that the tract is too small; that the cost is in excess of what the city anticipated when it decided to condemn the property; that public sentiment is opposed to the acquisition of the site, and that the presence of large gasoline storage tanks adjacent to the site renders it a fire hazard, were not established by a fair preponderance of proof, particularly in the absence of any claim of fraud, mistake, irregularity or judicial error in the proceeding. The mere fact that the city has changed its mind is no reason for permitting it to retreat from the proceeding. However, the premature payment of allowances by the city does not estop it from pressing its application to discontinue the proceeding.

In the absence of proof establishing just cause for the abandonment of the proceeding, the application must be denied.

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COUNSEL

J. Herbert Gilroy, Corporation Counsel, for the city of Utica.

Merrill & Quinn [August Merrill of counsel], for the defendant George F. Weaver Sons, Inc.

Russel S. Johnson, amicus curiæ.

DOWLING, J.

[252 N.Y.S. 21] On July 11, 1928, Fred J. Rath, then mayor of the city of Utica, recommended to the common council the purchase of a site for a municipal garage. His recommendation was referred to the joint committee of city property, buildings and grounds. Said committee investigated about twenty sites which were suggested as available for municipal garage purposes. On January 2, 1929, said committee reported to the common council the result of its investigation and recommended the acquiring of the site in question, which is known as the 'Weaver Tract.' An ordinance was introduced declaring the intention of the council to acquire said site. Upon objection of Alderman Hansmann, the ordinance was not adopted, but the council authorized a $100,000 bond issue for the purpose of acquiring a site and constructing a municipal garage.

Commissioner of Public Works Cronin reported to the council that from two and a half to three acres of land were required for a proper site.

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On January 23, 1929, the ordinance of January second, declaring the intention of the city to acquire the Weaver site, was adopted and the city engineer was directed to report a description of the property.

On February 20, 1929, City Engineer Cookinham reported a description of the property, with an opinion favoring the acquiring of said Weaver tract.

On April 17, 1929, said engineer reported a description of the premises to the council and recommended that said site be acquired by condemnation proceedings. His report was referred to the joint committee of finance, city property, buildings and grounds.

On May 15, 1929, said committee reported to the common council favorable to an ordinance for a public hearing in the matter of acquiring the proposed site. On June 5, 1929, such public hearing was held and after hearing the interested parties the council ordained its determination, by a vote of eleven to three, to acquire said tract and instructed the city engineer and corporation counsel to negotiate for the purchase thereof.

On June 26, 1929, the city engineer and corporation counsel reported to the common council recommending acquiring the said property by condemnation proceedings, stating in their report the factors which rendered the acquiring of said property desirable.

[252 N.Y.S. 22] On December 21, 1929, the city made petition to the Su preme Court for the appointment of commissioners of appraisal, it having been unable to agree with the defendant upon the price for said land. Said petition recited the necessity which existed for the acquiring of said premises for the housing of its motor equipment. The defendant defaulted in answering the petition and commissioners of appraisal were appointed by order signed that date.

The commissioners appointed organized, visited the property and heard the proofs of the parties. Being unable to agree, the commissioners handed up, May 29, 1930, two reports. The majority report fixed the value of the property and consequential damages at $29,500. The minority report fixed the value of the property at $37,500, and the consequential damages at $2,600, making a total of $40,100.

On June 11, 1930, the defendant procured an order directing the city to show cause why the majority report should not be set aside and the matter be submitted to the same, or other commissioners, on the ground that the award of $29,500 was grossly inadequate. On the return of said order to show cause, the city joined in the motion to set aside the said report, on the ground that the award, as made by the majority report, was grossly excessive. No affidavits were submitted on this motion by the city. The court

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denied both motions and confirmed the award. Order of confirmation was signed and filed July 3, 1930. The commissioners' fees, stenographer's fees, costs, disbursements and allowances of the defendant, as taxed by the clerk, amounted to $6,813.75.

On January 1, 1930, Charles S. Donnelley became mayor of Utica. In his message to the common council he advocated the rescinding of the ordinances pertaining to the condemnation of the Weaver tract. This recommendation was in line with a pledge he had made during his campaign for election. On January 15, 1930, Alderman Hansmann introduced an ordinance to give effect to the recommendation contained in the mayor's message. This ordinance was sent to committee. On February 5, 1930, he moved that said committee be discharged from further consideration of said ordinance. This motion was ruled out of order by the president of the council. On February 19, 1930, Alderman Hansmann introduced a similar ordinance, which was sent to committee. On March 19, 1930, he moved for the discharge of the committee and his motion was lost. On February 19, 1930, Alderman Graham introduced an [252 N.Y.S. 23] ordinance to the effect that the city abandon and discontinue condemnation proceedings. On March 5, 1930, the mayor sent the following communication to the common council:

'THE CITY OF UTICA

'OFFICE OF MAYOR

'CHARLES S. DONNELLEY

'Mayor

'UTICA, N.Y.

'March 5, 1930.

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