In re ELM St. in City of New York

• Decision Date: 20 July 1927
• Citation: 246 N.Y. 72,158 N.E. 24
• Parties: In re ELM STREET IN CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

246 N.Y. 72

158 N.E. 24

In re ELM STREET IN CITY OF NEW YORK.

Court of Appeals of New York.

July 20, 1927.

In the matter of the application of the Mayor, etc., of the City of New York, relative to acquiring title to lands, tenements, and hereditaments required for the purpose of opening, widening, and extending Elm Street from City Hall Place near Chambers Street, to Great Jones Street opposite Lafayette Place, in the Sixth, Fourteenth, and Fifteenth wards of the City of New York. Application by the American Express Company to compel the payment of an award in its favor. From an order of the Appellate Division of the Supreme Court in the First Judicial Department (218 App. Div. 765, 218 N. Y. S. 739), affirming an order of the Special Term granting the application, the City of New York appeals.

Reversed, and application denied.

Appeal from Supreme Court, Appellate Division, First department.

George P. Nicholson, Corp. Counsel, of New York City (Joel J. Squier and Wm. B. R. Faber, both of New York City, of counsel), for appellant.

Litchfield F. Moynahan, of New York City, for respondent.

CARDOZO, C. J.

In the year 1898 commissioners of estimate and assessment made an award of $36,266 in favor of the American Express Company in proceedings for the widening of Elm street, in the city of New York.

In February, 1899, the comptroller drew a voucher in favor of the Express Company for $40,122.28, the amount of the award with interest from the date of the vesting of title to the date of the voucher. Laws 1897, c. 641, § 2.

For some unexplained reason, the Express Company failed to call for this voucher, and for many years it was carried on the comptroller's books as a warrant outstanding against the city of New York.

In 1921 (23 years after the award) the Express Company awoke from its lethargy and made demand for payment. Upon the city's refusal to comply with the demand, a proceeding to enforce payment was begun, and thereafter carried to this court, 239 N. Y. 220, 146 N. E. 342. We held, reversing the ruling in the court below, that under Civil Practice Act (section 44) there was a conclusive presumption after 20 years that the award has been paid. The opinion pointed out that the city authorities were not at liberty to waive the defense of the statutory bar, however harsh the result. ‘Relief must be sought elsewhere.’ The claimant was not slow to look for aid in other quarters. Our decision was rendered in December, 1924. In April, 1925, the Legislature passed an act (Laws 1925, c. 602), which reads as follows:

‘An act in relation to the presentation, payment or enforcement of certain awards against cities for damages in condemnation proceedings.

‘Became a law April 11, 1925, with the approval of the Governor. Passed, three-fifths being present.

‘The people of the state of New York, represented in Senate and Assembly, do enact as follows:

‘Section 1. Where an award for damages has been made and confirmed by the Supreme Court in condemnation proceedings to acquire title in fee to real property for the purpose of opening, widening or extending a street in any city and said award has not been paid, but within one year last past has been adjudged by the courts of his state to have been barred by any statute of limitations, a claim for the payment of such award may be again presented and settled and paid, or if not so settled and paid may again be prosecuted and enforced by an action or proceeding in the courts of this state in the same manner as if the same had not been barred by any statute of limitations, and notwithstanding the fact the same was heretofore barred by such statute, provided that such claim be again presented to the proper officer of the city and paid within six months, or if not so settled and paid that an action or proceeding be commenced thereon within one year from the date of the passage of this act.

‘Sec. 2. This act shall take effect immediately.’

The claimant upon the passage of this act renewed its demand, and meeting again with a refusal, began this proceeding, which has been determined in its favor in both the courts below.

We think the act of 1925 was passed in violation of the restrictions imposed by section 2 of article 12 of the Constitution of the state.

By that section it is provided:

‘The Legislature shall not pass any law relating to the property, affairs or government of cities, which shall be special or local either in its terms or in its effect, but shall act in relation to the property, affairs or government of any city only by general laws which shall in terms and in effect apply alike to all cities except on message from the Governor declaring that an emergency exists and the concurrent action of two-thirds of the members of each house of Legislature.’

This act was not passed upon an emergency message or by the concurrent action of two-thirds of each house. The question is whether it is special or local in terms or in effect.

The section quoted is part of the Home Rule Article or Amendment of the Constitution of the state which took effect as law on January 1, 1924. Up to that time, the distinction between special or local laws, on the one hand, and general laws, on the other, was directed to the form of the enactment rather than to its substance. If the act by its terms was applicable to a class, it did not cease to be general though the fact would appear, if extrinsic evidence were received, that it was local in effect. Matter of N. Y. El. R. Co., 70 N. Y. 327;Matter of Church, 92 N. Y. 1, 5;People v. Dunn, 157 N. Y. 528, 540,52 N. E. 572,43 L. R. A. 247;Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 395,54 N. E. 1081. Even then there was a point beyond which evasion was not suffered. Identifying tokens might be so many and particular that classification would find an end and designation a beginning. Matter of Henneberger, 155 N. Y. 420, 50 N. E. 61,42 L. R. A. 132. There was here in this exception the germ of a doctrine more adapted to realities. As time went on, however, the exception was so narrowed by distinctions that it became of negligible value. The provisions of the Constitution distinguishing between special acts and general were in much the same pass as was the Statute of Uses (27 Henry VIII, c. 10) after the decision in Tyrrel's Case, 2 Dyer, 155, had opened the door to the development of trusts through the ingenuity of the chancellors. Little had been accomplished beyond the addition of a phrase to the rigmarole of parchments. Hardwicke, L. C., in Hopkins v. Hopkins, 1 Atk. 581, 591; Williams, Real Property [24th Ed.] pp. 59, 60, 61; 2 Washburn, Real Prop. [4th Ed.] p. 406, bk. 2, c. 2, § 2; p. 460, bk. 2, c. 3, § 9.

The Home Rule Amendment established a new test. We are no longer confined to the inquiry whether an act is general or local ‘in its terms.’ We must go farther and inquire whether it is general or local ‘in its effect.’ Home rule for cities, adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of...