Lafayette Hotel Co. v. Erie County
| Decision Date | 30 September 1960 |
| Citation | 205 N.Y.S.2d 626,26 Misc.2d 755 |
| Parties | LAFAYETTE HOTEL COMPANY, Plaintiff, v. COUNTY OF ERIE, Defendant. |
| Court | New York Supreme Court |
Diebold & Millonzi, Buffalo (Robert I. Millonzi, Buffalo, of counsel), for plaintiff.
Elmer R. Weil, County Attorney, Buffalo (M. Sarsfield Brennan, First Asst. County Atty., Buffalo, of counsel), for defendant.
The plaintiff seeks a preliminary injunction pending the determination of this action enjoining the defendant from taking immediate possession of certain premises owned in fee by plaintiff. The Board of Supervisors of the defendant, by resolution passed September 20, 1960, authorized the taking under Chapter 758 of the Laws of 1937, as amended, in order to build a free public library.
The principal action demands judgment declaring said statute unconstitutional, declaring all of defendant's acts pursuant thereto as unconstitutional, perpetually enjoining defendant from taking said property of the plaintiff unless just and adequate compensation be paid therefor.
The defendant intends to demolish the garage located on these premises and used by plaintiff in its hotel business in the City of Buffalo by hotel guests. The loss of these parking facilities would destroy a large segment of plaintiff's hotel business and its public parking business, whereby plaintiff will suffer allegedly great and irreparable damage. No compensation has been paid to the plaintiff as yet for such proposed taking.
On December 9, 1959, this Court granted a preliminary order of condemnation in favor of this defendant and against this plaintiff pursuant to Chapter 758 of the Laws of 1937, as amended (Erie County's Special Condemnation Act) after the Board of Supervisors authorized it by resolution dated June 9, 1959. This plaintiff appealed said order to the Appellate Division, Fourth Department, on the grounds that the Condemnation Law of the State of New York was the only statute under which property could be taken for library purposes as authorized by the City-County Free Public Library Act (Chapter 768, L.1953). On July 1, 1960, the Appellate Division affirmed this condemnation order; on July 12, 1960, it denied plaintiff's motions for leave to appeal to the Court of Appeals and for a stay of said condemnation order.
It is contended by the plaintiff that its right and opportunity to raise the question of unconstitutionality did not accrue until September 20, 1960 when the Board of Supervisors resolved:
'that pursuant to the the provisions of Chapter 758 of the Laws of 1937, as amended, the County enter into immediate possession of the above described land or any part thereof and devote the same to the public use specified in the Petition, said public use being the acquisition of the above described property for the purpose of constructing a new library building.'
The Condemnation Act under attack is entitled, 'An Act providing an alternative method for the county of Erie to acquire real property by condemnation before the supreme Court without a jury'--being Chapter 758, Laws of 1937 Chapter 561, Laws of 1939. It consists of 17 sections, the pertinent ones are the following:
Section 2 provides that the '* * * ascertainment of compensation or damages to be made to the owners of the real property to be acquired * * * shall be conducted pursuant to this act * * * and compensation shall be made to the owners of the real property acquired in accordance with the provisions of this act.' (Emphasis supplied.)
Section 3, entitled, 'Application for condemnation,' provides for a proceeding to acquire real property and 'compensation' to be paid to the owners.
Section 6 entitled, 'Hearing to determine compensation', refers to 'compensation,' 'just compensation,' and 'total amount of compensation' to be paid to owners.
Section 9 entitled, 'Final Decree,' states, in part, that:
'In the event that an order shall be made discontinuing or abandoning the proceeding as a whole, or discontinuing or abandoning so much of the proceeding as relates to additional land, the court shall ascertain and determine the reasonable and necessary expenses and disbursements incurred by each person who has appeared in the proceeding, either in person or by attorney, as provided in section three of this act * * * and such costs and expenses shall be paid to such person by the county.' (Emphasis supplied.)
Section 13 entitled, 'Payment of awards,' states, in part, that:
'In case the county shall have entered upon the land for which such compensation has been decreed prior to the payment of the compensation decreed, the county shall pay interest at the rate of four percentum upon the compensation decreed from time of such entry.' 'Upon making to the respective persons the compensation decreed to them or paying the same into court as aforesaid, the fee of the lands taken shall rest in the county * * *' (Emphasis supplied.)
The only reported case citing this Erie County Condemnation Act is County of Erie v. Weber, 175 Misc. 328, 23 N.Y.S.2d 1020, but it does not directly consider its constitutionality.
The plaintiff contends that this Act is unconstitutional because at any time prior to the granting of the final decree and the vesting of title to the lands in the County, the County Board of Supervisors may, by unilateral resolution, order the discontinuance or abandonment of the proceeding, leaving the plaintiff without power to collect any 'damages' as a result of the temporary taking, since any award for 'damages' would be impossible. In other words, the expression used in Section 9, namely, 'reasonable and necessary expenses and disbursements incurred by each person who has appeared in the proceeding' does not include or cover the 'damages' sustained by such person.
At first blush, the plaintiff's contention seems to have substance because 'expense' means 'cost or money paid out,' (Webster's New International Dictionary, 2nd Ed.); 'disbursement' means 'funds paid out,' (Ibid.); whereas, 'damages' means 'the estimated reparation in money for detriment or injury sustained; compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right.' (Ibid.) Nevertheless, this Act provides for 'compensation,' also, which means 'that which makes good the lack of variation of something else * * * as, compensation to dispossessed owners.' (Ibid.) Thus, as used in the Act 'compensation' is synonymous to 'damages.'
Viewed in its entirety, the Act provides for the payment to injured land owners of 'compensation or damages' (§§ 2, 3, 6, 13), 'expenses and disbursements,' 'costs and expenses' (§ 9), and 'interest' (§ 13). When read together, the sections of the Act...
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1.9 2. Eminent Domain
...5 Misc. 2d 216, 160 N.Y.S.2d 510 (Ct. Cl. 1957).[42] . Adamec v. Post, 273 N.Y. 250 (1937); Lafayette Hotel Co. v. County of Erie, 26 Misc. 2d 755, 205 N.Y.S.2d 626 (Sup. Ct., Erie Co. 1960). In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court held that a taking by the New......