3 N.Y. 511, Embury v. Conner

Citation:3 N.Y. 511
Party Name:EMBURY and others v. CONNER and another.
Case Date:July 01, 1850
Court:New York Court of Appeals

Page 511

3 N.Y. 511

EMBURY and others


CONNER and another.

New York Court of Appeal

July 1, 1850

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W. Kent, for appellants.

E. Sandford, for respondents.


On the part of the defendants, it is claimed, that the facts show that the corporation of New-York acquired the title to the premises in question, and legally conveyed them to James Conner, thereby showing an outstanding title adverse and paramount to that set up by the plaintiffs. On the other hand it is contended that the corporation of New-York did not, by said proceedings, acquire any title to the premises in question, on the ground that section 179 of the act of April 9, 1813, entitled "an act to reduce the several laws relating particularly to the city of New-York, into one act," (2 R. L. 416,) contains the only authority attempted to be conferred by law, upon the commissioners of estimate and assessment to include parts of lots not required to be taken for widening or opening streets in their estimate and assessment, and to vest the title thereto in the corporation of the city of New-York, in fee, and that this section of the statute is void, because the legislature assumed to confer a power to take the property of one, without his consent, and apply it to the use of another.

By that section it is enacted that it shall be lawful for the commissioners, so to be appointed by the court, for any of the purposes aforesaid, in all cases where part only of any lot or lots, parcel or parcels of land, or of any other tenements, hereditaments or premises, shall be required for any the aforesaid purposes, leaving a residue of such lot or lots, parcel or parcels of land or other premises belonging to the same owner or owners or parties in interest, to whom the said part thereof so required for such purpose, shall belong, and they the said commissioners shall deem it expedient and proper so to do, to include and comprise in their said estimate and assessment, the whole or any part of such said residue of such lot or lots, or parcel or parcels of land or other premises along with the part of the same so required for the said purpose of the said intended operation and improvement, in like manner as if the said residue, or the part

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thereof so to be included in the said estimate and assessment, was required for the purpose of making the said operation and improvement so to be made, and all the said part and residue of the said lot or lots, parcel or parcels of land or other premises so included in the said estimate and assessment, and not required for the purpose of making such said operation and improvement, shall, on the confirmation by the said court of the said report of the commissioners, or such further report as may be made in the premises, become, and be vested in the said mayor, aldermen and commonalty of the city of New-York, and their successors, in fee simple, who may appropriate the same, or any part thereof, to public uses, and shall and may sell and dispose of the residue thereof, or the whole in case of no appropriation of any part thereof for public uses; and in case of the sale of the same, or any part thereof, the proceeds shall be disposed of in the manner and for the purposes as provided for by the next section.

It needs no argument to show that the end and design of this section was not to take private property for the use of the public. It manifestly goes upon the ground that the property so authorized to be taken is not wanted for the purpose of forming or improving a street, the object in view for which the proceedings are instituted. In the Matter of Albany-street, (11 Wend. 148,) the constitutionality of this enactment came directly under the consideration of the supreme court, on application to confirm the report of the commissioners in that matter. The court then held that if that provision was intended merely to give to the corporation capacity to take property under such circumstances, with the consent of the owner, and then to dispose of it, there could be no objection to it. But if it was to be taken literally, that the commissioners might, against the consent of the owner, take the whole lot, when only a part was required for public use, and the residue to be applied to private use, it assumed a power which the legislature did not possess. This decision went mainly upon the implication contained in the last member of the clause of section seven of article seven of the constitution of 1821, that "No person shall be deprived of life, liberty, or property,

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without due process of law: nor shall private property be taken for public use without just compensation."Chief Justice Savage said, "The constitution, by authorizing the appropriation of private property to public use, impliedly declares, that for any other use, private property shall not be taken from one and applied to the private use of another." In Bloodgood v. The Mohawk and Hudson Railroad Co. (18 Wend. 59,) Mr. Senator Tracy said the words should be construed "as equivalent to a constitutional declaration that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation." Bronson, J. in Taylor v. Porter, (4 Hill, 147,) in reference to this question, said, that although he felt no disposition to question the...

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