Reynolds v. Common Council of City of Buffalo

• Citation: 35 N.E. 485,140 N.Y. 300
• Parties: PEOPLE ex rel. REYNOLDS v. COMMON COUNCIL OF CITY OF BUFFALO.
• Decision Date: 05 December 1893
• Court: New York Court of Appeals

140 N.Y. 300

35 N.E. 485

PEOPLE ex rel. REYNOLDS

v.COMMON COUNCIL OF CITY OF BUFFALO.

Court of Appeals of New York.

Dec. 5, 1893.

Appeal from superior court of Buffalo, special term.

Application on the relation of Amelia E. Reynolds for a peremptory writ of mandamus to compel the common council of the city of Buffalo to audit and adjust a claim in favor of relator against the city. From an order of the general term (21 N. Y. Supp. 601) affirming an order of special term (21 N. Y. Supp. 598) granting the writ, respondent appeals. Affirmed.

W. F. Mackey, for appellant.

O. O. Cottle, for respondent.

O'BRIEN, J.

The order appealed from awarded to the relator a peremptory writ of mandamus, directed to the common council of the city of Buffalo, commanding them forthwith to audit and adjust the damages sustained by the relator, which had been appraised at $5,500, in proceedings for opening and regulating a street, and to cause that sum to be raised by a local assessment upon the property benefited by the improvement. The following facts appeared upon the application: In the year 1885 the city of Buffalo instituted proceedings under its charter for the extension of Elmwood avenue, and took property for that purpose; the same having been appraised by commissioners duly appointed, and payment therefor was made by local assessment. The relator appeared before the commissioners, and offered to prove that her property would be damaged by the removal of some buildings adjoining or near her premises. The commissioners refused to allow the proof, for the reason, apparently, that the damages claimed were incidental and consequential, and that, as none of her lands were actually taken, there was no power to make an award in her favor. The report of the commissioners was confirmed by the common council May 11, 1886, and the assessment was directed. The relator appeared before the common council, and by petition setting forth her claim asked that compensation be made to her for the damage which she alleged would result to her property. Her petition was heard, but not granted; and the common council passed a resolution, which was approved by the mayor, requesting the legislature to authorize by law the payment of a just compensation to her. The legislature did not then act upon the resolution. On the 28th of July, 1887, the city and the relator entered into an agreement in writing whereby the relator, in consideration of the transfer to her by the city of certain building and furnishing material, released her claim, and agreed to waive all objections on her part to the validity of the assessment made against her property to pay for the improvement. The matter seems to have rested on this arrangement till the passage by the legislature of chapter 393, Laws 1890, which authorized the common council to audit and allow the claim when appraised, and to raise the amount by local assessment, and pay the same to her. The act provided that the damages should be appraised by three commissioners to be appointed by the superior court of Buffalo, upon notice to the city, and their report approved by the court, before presenting it to the common council for audit. The commissioners were appointed, heard the claim, and made an award for damages. On the 13th of February, 1891, the court, by its order, duly entered, confirmed the report. On the 3d of March, 1891, the legislature passed chapter 42 of the Laws of that year, whereby the act of 1890, authorizing the audit and payment of the claim, was repealed. Notwithstanding this repeal, the relator presented the claim to the common council for audit, and, upon their refusal to allow it, or to take any proceedings to provide for its payment by assessment, applied to the court for the writ of mandamus. After the confirmation of the report of the commissioners appointed to appraise the damages under the act of 1890 by the special term of the superior court, the city appealed from the order to the general term, where the order was affirmed, and no appeal to this court from that order was taken. The city now claims that the act of 1890, which authorized the audit of the relator's claims, was unconstitutional, because it impaired the obligations of the contract between the city and the relator, whereby she agreed to and did release all of her claims; and the relator insists that the repealing act of 1891 is void as to her, for the reason that the legislature had no power to affect the right which became vested by the confirmation of the report.

As to the contention in behalf of the city, it is not necessary to inquire with respect to the power of the legislature to authorize claims founded in...