92 N.Y. 262, De Peyster v. Mali

Citation:92 N.Y. 262
Party Name:NICHOLAS DE PEYSTER, as Executor and Trustee, etc., Appellant, v. HENRY W. T. MALI et al., Respondents.
Case Date:April 17, 1883
Court:New York Court of Appeals
 
FREE EXCERPT

Page 262

92 N.Y. 262

NICHOLAS DE PEYSTER, as Executor and Trustee, etc., Appellant,

v.

HENRY W. T. MALI et al., Respondents.

New York Court of Appeal

April 17, 1883

Argued Mar. 29, 1883.

COUNSEL

James A. Deering for appellant. If this plaintiff was, at the time of the confirmation of the report of the commissioners of estimate and assessment, the owner of the parcels of land in question, he can maintain this action. (Laws of 1813, chap. 86, § 184; Cahill v. Palmer, 45 N.Y. 480; In re Arnold, 60 Id . 26.) The report of the commissioners of estimate and assessment, awarding the sums in question, was an adjudication conclusive upon the parties to this action, and upon "all persons

Page 263

whomsoever," as to the interests and estate for which said awards were made, and upon every question submitted to or decided by the commissioners or the court, or necessarily involved in the decision of the court confirming the report, except as to the ownership of the land for which the awards were made. (Laws of 1813, chap. 86, § 178; Matter of Riverside Park, 50 N.Y. 493; Matter of Dept. of Parks, 73 Id . 560; Pittman v. The Mayor, 3 Hun, 372; 62 N.Y. 237; Dolan v. The Mayor, Id . 742; In re Arnold, 60 Id . 26; Swift v. Poughkeepsie, 37 Id . 511; People v. Collins, 19 Wend. 56; Supervisors v. Briggs, 2 Hill, 135.)The report, as confirmed, is not only final and conclusive as to the subject-matter or matters thereby determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. ( Voorhees v. Bank of U. S., 10 Pet. 449; La Goun v. Gouverneur, 1 Johns. Cas. 436; 2 Smith's Lead. Cas., tit. "Estoppel," 455, note; Etheringe v. Osborne, 12 Wend. 399; 63 N.Y. 472; 50 Id . 493; In re Dept. of Public Parks, 73 Id . 560.) The report being conclusive as to the estate, etc., for which the awards were made, the awards in question belong to the owner of the fee of the land for which made. ( In re Dept. of Works, 73 N.Y. 560; Trinity Church v. Cooke, 21 How. 89; Turner v. Williams, 10 Wend. 140; Gillespie v. The Mayor, 23 Id . 645; Kelsey v. King, 33 How. Pr. 40; Laws relative to New York city, Valentine, 1197; Matter of Dept. of Parks, 73 N.Y. 560.) The commissioners of estimate and assessment in the Riverside park opening matter were right in allowing substantial compensation for the fee. ( Williams v. N.Y. C. R. R. Co., 16 N.Y. 97; Trustees v. Auburn R. R. Co., 3 Hill, 567; Kelsey v. King, 33 How. Pr. 39; Knox v. The Mayor, 55 Barb. 404; Matter of Prospect Park & C. I. R. R. Co., 16 Hun, 261; Laws of 1838, chap. 223; Laws of 1847, chap. 203; Laws of 1851, chap. 183.) The plaintiff, as executor, etc., was at the time of confirmation of the report the owner in fee of the said parcel of land. (19 Wend. 679; Jackson v. Hathaway, 15 Johns. 453; Van Amringe v. Barnett, 8 Bosw. 357;

Page 264

In re John & Cherry St's, 19 Wend. 659; Williams v. N.Y. C. R. R. Co., 16 N.Y. 97, 101; Hooker v. Utica, etc., 12 Wend. 371; Trustees, etc., v. Auburn R. R. Co., 3 Hill, 567; Pearsall v. Post, 20 Wend. 131; Barclay v. Howell's Lessee, 6 Peters, 498; People v. B'd of Westchester, 4 Barb. 64; Etz v. Daily, 20 Id . 32; Kelsey v. King, 33 How. 39; Higgins v. Reynolds, 31 N.Y. 151; Bloomfield Gas Co. v. Kalkins, 62 Id . 386.)The city and "all persons whomsoever" are concluded by that adjudication. ( Matter of Dept. of Parks, 73 N.Y. 560.) Acceptance by the council was necessary to complete the dedication by the owners. ( Niagara Co. v. Bachman, 66 N.Y. 266; Badum v. Mead, 14 Barb. 328; Fonda v. Borst, 2 Abb. Ct. of App. 155; Holdam v. Coldspring, 21 N.Y. 474; Peck v. Mallins, 10 Id . 509.) The "release," in any event, only granted an easement in such land, and not the fee. ( Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Cincinnati v. Lessee of White, 6 Pet. 438; Merriam v. Russell, 2 Jones [N. C.], 470; Schuylkill Co. v. Homer, 2 Grant's Pa. Cas. 462; Pollard v. Maddox, 28 Ala. 321; Jackson v. Hathaway, 15 Johns. 147; Jamaica Pond v. Chandler, 9 Allen, 164; Graves v. Amoskeag Co., 44...

To continue reading

FREE SIGN UP