Culver Contracting Corp. v. Humphrey

Decision Date28 May 1935
PartiesCULVER CONTRACTING CORPORATION v. HUMPHREY, Supreme Court Justice.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Proceeding on the application of the Culver Contracting Corporation for a prohibition order against the Hon. Burt Jay Humphrey, a Justice of the Supreme Court of New York. From an alternative order (241 App. Div. 825, 271 N. Y. S. 179), a final order (242 App. Div. 649, 272 N. Y. S. 662), and a resettled final order (242 App. Div. 837, 275 N. Y. S. 665) of prohibition directed against the said Justice and against Mortimer Schwager and the City of New York, the Justice and Mortimer Schwager appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Nathan L. Goldstein and Samuel Goldstein, both of New York City, for appellants.

Emil N. Baar, Arthur Block, and David E. Winer, all of New York City, for respondent Culver Contracting Corporation.

Paul Windels, Corp. Counsel, of New York City (Paxton Blair and Alexander S. Aleinikoff, both of New York City, of counsel), for respondent City of New York.

Mortimer DeGroot and Herbert S. Greenberg, both of New York City, for Corson Const. Co., amicus curiae.

FINCH, Judge.

This is an appeal from a final order of prohibition, an alternative order of prohibition, and a resettled final order of prohibition, granted by the AppellateDivision, Second Department, directed against a justice of the Supreme Court, a claimant in condemnation proceedings, and the city of New York, commanding them to desist and refrain from further proceedings with respect to the submission and taking of testimony or other proof concerning physical damage to property owned by the claimant Schwager.

The condemnation proceeding which is the subject of this controversy was instituted by the board of transportation of the city of New York, pursuant to chapter 4 of the Laws of 1891, as amended, known as the Rapid Transit Act. The property to be condemned was described in detail in a memorandum attached to the petition for the order of condemnation. The order contained the following provision which defined the jurisdiction of the condemnation court: ‘Ordered that the said petition of the Board of Transportation of the City of New York to have the Compensation which ought justly to be made to the owners of or persons interested in the real property rights, terms, privileges, franchises or easements, sought to be acquired in this proceeding, ascertained and determined by the Court without a jury, be and the same hereby is granted.’

Subsequently the condemnation proceedings were severed into two separate proceedings, one to deal with the fixing of compensation for parcels taken in fee, the other to deal with the fixing of compensation for permanent and temporary easement parcels. It is only with the latter proceeding that we are concerned.

The owners of these parcels contended that they were entitled to recover, in addition to the fair market value of the permanent and temporary easements, the damages caused by reason of the use to which the property acquired was put. They further contended that, for the purpose of proving damage by reason of the use of the damage parcels for the construction of a rapid transit railroad, they were entitled to submit evidence of facts and circumstancesas to damages which resulted from the construction of the railroad up to the date of the trial and which had the result of decreasing the rental and market value of their premises, in portions of which permanent and temporary easements had been acquired by the city. The admission of this evidence was objected to, the city's counsel contending that the claimants were not entitled to recover for damages to their remaining property in the condemnation proceeding, but were limited in that proceeding to a recovery of the value of the temporary and permanent easements. The trial court overruled the objections and denied a motion to dismiss the claims for damages. Proper exceptions were taken. The Culver Contracting Corporation, a contractor whose contract required it to assume liability for damages to abutting property, was ‘vouched’ into the condemnation proceeding and appeared specially to challenge the jurisdiction of the court to hear and admit testimony of damages to the property of the claimant Mortimer Schwager. Its motion to have the testimony stricken from the record was denied and it took exceptions. Thereafter the contracting corporation instituted the present proceeding through the service of a petition for an order of prohibition.

The primary question involved in this appeal is whether the condemnation court had jurisdiction to make an award for physical damage to property not acquired or extinguished in the proceeding. The answer to this question is to be found in the statute itself. Section 39 of the Rapid Transit Law as added by Laws 1894, c. 752, § 9, as amended provides for the acquisition of property. It provides that there may be acquired by condemnation proceedings ‘any such real estate, and any rights, terms and interests therein, and any such rights, privileges, franchises and easements.’ Laws 1909, c. 498, § 39, subd. 2. The provisions relating to the jurisdiction of the Supreme Court are found in section 46 (as added by Laws 1915, c. 604, § 2). It is there made the duty of the Corporation Counsel to publish a notice ‘containing a general description of the property to be acquired or affected.’ Laws 1915, c. 604. Owners of ‘any property taken or extinguished’ are required to file claims with the county clerk. The duties of the court are thus defined: ‘It shall be the duty of the justice trying any such proceeding to view the property to be thereby acquired or extinguished, and if he shall deem a view of the property in the vicinity of the property to be acquired or extinguished necessary or useful, he shall make such view.’

Provision is made for the ascertainment of damages for the ‘taking’ of property or the ‘extinguishing’ of easements and other interests; but no provision is made for the ascertainment of physical damages of property which is not taken or subjected to an easement. It is true that in the early part of the section reference is made to property ‘acquired or affected.’ The context shows, however, that ‘affected’ does not mean ‘damaged,’ but means ‘subjected to temporary or permanent easements or permanently diminished in value.’

That the condemnation statute is the measure of the court's jurisdiction has been long established. In re Poughkeepsie Bridge Co., 108 N. Y. 483, 15 N. E. 601;In re Squire, 125 N. Y. 131, 26 N. E. 142;In re Willcox (Fourth Ave. Subway), 213 N. Y. 218, 224107 N. E. 499, 500.

In Re Willcox, supra, the abutting owner sought an award for the loss of lateral support. It was held that the city had the right to determine what property it wished to condemn and that the condemnation court was limited to making awards for the property taken. It was said: ‘The proceeding is instituted to acquire or extinguish the property (as defined by the statute) described and specified in the petition and maps or plans and memoranda filed referred to by it and not any other. Such property and not any other is acquired or extinguished by it. * * * It is that property and that alone which the city may seize in fee, enter upon and become liable in the proceeding to the respective owners for the true and respective values of, and the commissioners of appraisal are to ‘ascertain and determine the compensation which ought justly to be made by the said city to the owners or persons interested in the property acquired or extinguished by said proceeding.’ Their report or reports can relate only to the property indicated on the map or plan and memoranda and described in the petition.' (Italics interpolated.)

In the case at bar, as in the Willcox Case, maps, plans, and memoranda were prepared and annexed to the petition for condemnation. The property which suffered the physical damage, however, as distinguished from property rights acquired, is not mapped or described, nor is there any provision for the condemnation of easements of lateral support. On the contrary, the petitioner expressly excepts such easements. The city has the right to determine what property it wishes to condemn. It has decided to condemn the fee of the street and certain temporary and permanent easements. It has failed to condemn the property herein involved or the easement of lateral support appurtenant to it. The remedy sought in a condemnation proceeding is purely statutory. The only question presented is whether the injury which the claimant suffered is within the statute. In Re Squire, supra. The difference in mode of procedure for property taken in condemnation and for damages inflicted over and above the value of the property taken involves a difference in substance. Between taking or extinguishing property upon paying its value in condemnation, the title of the property going to the state, and simply damaging property, the title remaining in the owner, lies a distinction well marked in the jurisprudence of this state. Not only must the damages in the former be determined by commissioners or a judge and in the latter by a jury, but the measure to be applied is different. In the former full value must be given, while in the latter much of the damage suffered during the execution of a public improvement, if not caused by want of care in its execution, may go unredressed as a normal incident of city life. Farrell v. Rose, 253 N. Y. 73, 170 N. E. 498, 68 A. L. R. 1505. In consequence, the condemnation court lacks jurisdiction to make an award for damages to such uncondemned property.

It is true that the Willcox Case involved one having rights only as an abutter, whereas the city has acquired from the claimant herein permanent and temporary easements in the real estate which is part of the parcel on which the damaged building is located. The principles...

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