People ex rel. Cent. Trust Co. of New York v. Prendergast

• Decision Date: 16 May 1911
• Citation: 202 N.Y. 188,95 N.E. 715
• Parties: PEOPLE ex rel. CENTRAL TRUST CO. OF NEW YORK v. PRENDERGAST, City Comptroller.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 188

95 N.E. 715

PEOPLE ex rel. CENTRAL TRUST CO. OF NEW YORK

v.PRENDERGAST, City Comptroller.

Court of Appeals of New York.

May 16, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the People of the State of New York, on the relation of the Central Trust Company of New York, as substituted trustee under Jason Rogers' will, against William A. Prendergast, Comptroller of the City of New York. From an order of the Appellate Division (128 N. Y. Supp. 1139)affirming an order (129 N. Y. Supp. 428) granting a peremptory writ of mandamus, defendant appeals. Affirmed.

Archibald R. Watson, Corp. Counsel (Clarence L. Barber, of counsel), for appellant.

Barclay E. V. McCarty, for respondent.

VANN, J.

This litigation has a long and varied history. It began in 1893 shortly after the passage of chapter 537 of the laws of that year, which authorized the appointment of commissioners to estimate the loss and damage sustained by abutting owners owing to a change of grade made in certain streets of the city of New York pursuant to chapter 721 of the Laws of 1887. The owners affected were authorized to prove the damages sustained by them, if any, and to recover the amount thereof from the city. The commissioners were required to make a just and equitable award, and the comptroller was directed to pay the same through the issue of bonds for the purpose. While the change of grade had been directed several years before, it was not physically made in front of the premises in question until about September, 1893 . One Jason Rogers had owned said premises from 1857 until his death in 1868, and since then by virtue of his will the title thereto has been in trustees, and is now in the relator as substituted trustee. In November, 1893, the trustees then in charge of Mr. Rogers' estate filed their claim, which, together with all others of like character, was strenuously contested by the city. In December, 1901, the commissioners made an order dismissing the Rogers claim on the ground that they had no jurisdiction to pass upon it and it was not until April, 1905, after protracted efforts, that the order was vacated and the claim sent back to the commissioners for determination. The city, however, appealed from the order of the Special Term so sending the claim back, but in July, 1905, the appeal was dismissed by the Appellate Division. The city authorities at an early stage in their opposition to claims filed contended that no damages could be awarded unless the property had been injured in connection with the depression of railroad tracks and a test case, brought to settle that question, was not finally decided until 1908 when the Appellate Division overruled the contention of the city. People ex rel. Astor v. Stillings, 124 App. Div. 195,108 N. Y. Supp. 903. As soon as the time to appeal from the decision in that case had expired and it was known that no appeal could be taken, the Rogers claim was tried, and in August, 1909, the commissioners awarded the sum of $20,400, but, although duly requested to allow interest from the date of the physical change of grade, they refused to do so. Upon review through a writ of certiorari issued in behalf of the relator, it was held that, while the Legislature could require a municipality changing the grade of public streets to pay consequential damages to abutting owners, no interest could be allowed on the award from the time the change was actually made until the date of payment unless the statute specifically so provided. People ex rel. Central Trust Co. v. Stillings, 136 App. Div. 438,121 N. Y. Supp. 13;Id., 198 N. Y. 504, 92 N. E. 1096.

After the question of interest had thus been settled, a writ of certiorari, issued in behalf of the city to review said award of $20,400, resulted in an order made by the Appellate Division setting it aside and granting a new trial upon the ground that, although the evidence justified the amount, the commissioners had acted without power in supplementing the evidence before them by a personal view of the premises affected. People ex rel. City of New York v. Stillings, 138 App. Div. 168,123 N. Y. Supp . 349.

From the outset, as appears from affidavits read on behalf of the relator and not denied by the comptroller, it was the settled policy of the city authorities, but not including the present administration, to prevent the prompt making of awards and to delay the payment thereof when made. It was shown that in one of the many proceedings instituted by the city to set aside awards made one of the commissioners stated officially that ‘for a period of about two years since I have been on this commission, the municipal authorities were urging us to proceed slowly and for quite some part of the time insisted that no case should be decided or certificate of award filed in the comptroller's office.’ People ex rel. Grout v. Stillings, 76 App . Div. 143,78 N. Y. Supp. 942. In another case in which the commissioners had long delayed their determination, a motion was made to punish them for contempt, and one of them, in an affidavit read in opposition, stated ‘that on December 9th, 1907, this commission received from the board of estimate and apportionment a formal direction, directing them not to make any awards until further notice.’

The decision of this court settling the question of interest under the statute as originally passed was filed on the 22d of February, 1910, and shortly thereafter and owing thereto a bill was introduced at the same time in both Senate and Assembly to remedy the defect, as appears from the affidavit of Mr. Ward, who introduced it in the Assembly. It was supported at hearings before committees and the Governor by many distinguished citizens and it was opposed by the city, but by no one else. It became a law on the 25th of June, 1910, by the signature of Gov. Hughes, who filed a memorandum giving his reasons for approving the same. Among other things, he said: ‘At common law the owner of land abutting upon a public street is not entitled to consequential damages for an injury he may suffer by reason of a lawful change in the grade of the street upon which his property abuts, but it is obvious that the change of grade may subject him to actual loss and to remedy the apparent injuries which resulted from a common-law rule statutes have been passed allowing damages for changes in grade. By a recent decision of the Court of Appeals it has been held that such awards of damages do not carry interest because the statutes have not expressly provided for interest. This bill is to remedy the defects in the statute. * * * I regard the bill as an act of justice.’ After the bill became a law and in August, 1910, the Rogers claim was again tried and resulted in an award of $15,000 . Demand was duly made upon the comptroller for payment of that amount together with interest at 6 per cent. from the 15th of September, 1893, when the physical change of grade was made, and that he should issue bonds to provide for payment accordingly. He refused to pay either principal or interest upon the ground that chapter 701 of the laws of 1910 ‘does not apply to awards made for change of grade damages in the city of New York.’ Thereupon the relator began this proceeding to compel the payment of said award, with interest. A peremptory writ was granted accordingly by the court at Special Term, and upon appeal to the Appellate Division unanimous affirmance was ordered upon the law, and not in the exercise of discretion. The city appealed to this court.

[1] The constitutionality of the act of June 25, 1910, known as chapter 701 of the laws of that year, is challenged by the appellant on several grounds. That act is an amendment of the highway law and forms chapter 25 of the Consolidated Laws of 1909. A new section was added to be known as 59a, which is as follows: ‘Whenever awards shall be lawfully made, pursuant to any statute of this state, for damages sustained by real estate or any improvements thereon by reason of any change of grade of any street, avenue or road in front thereof, the award for the principal amount of damages sustained shall bear interest at the rate of six per centum per annum from the time of the change of grade to the time of the payment of the award.’

The learned counsel for the city claims that this act violates section 16 of article 3 of the Constitution, because, as he argues, since it amends a local law it is itself a local law, yet it does not adequately express the subject in the title. The act, however, does not amend a local law, and it is not a local but a general law, for it applies to awards made pursuant to any statute of the state for damages sustained by reason of any change of grade of any street, avenue, or road in the state. As was well said by Mr. Justice Page at Special Term: ‘While it applies to awards made pursuant to a local law applicable to the city of New York, it applies to all awards of the same class made anywhere within the state. There is no limitation as to locality.’ It is part of the highway law which covers the entire state and applies wherever the circumstances permit the application thereof the same as any general law. The section in question applies to all localities in which real estate has been injured by reason of any change of grade of any street, avenue, or road in front thereof, provided some statute authorizes an award of damages therefor. Such localities are spread all over the state.

[2] It was not necessary for the Legislature to amend by a separate act with an appropriate title each of a score or more ‘change of grade statutes,’ every one confined to a particular locality, but it could proceed by one general and comprehensive act to cover them all as well as those to be enacted in the future.

[3] As the act is general, the form of the title is unimportant, since a general act requires an enacting clause only. Ferguson v. Ross, 126 N. Y. 459, ...