Schneider v. City of Rochester

• Decision Date: 03 October 1899
• Citation: 160 N.Y. 165,54 N.E. 721
• Parties: SCHNEIDER v. CITY OF ROCHESTER.
• Court: New York Court of Appeals Court of Appeals

160 N.Y. 165

54 N.E. 721

SCHNEIDER

v.CITY OF ROCHESTER.

Court of Appeals of New York.

Oct. 3, 1899.

Appeal from supreme court, appellate division, Fourth department.

Action by Matilda Schneider against the city of Rochester to enjoin defendant from applying for the appointment of new commissioners in proceedings to open a street. From a judgment of the appellate division (53 N. Y. Supp. 931) affirming a judgment dismissing the complaint, plaintiff appeals. Reversed.

Elbridge L. Adams and Waldo G. Morse, for appellant.

John F. Kinney, for respondent.

MARTIN, J.

The plaintiff is a resident of the city of Chicago, and the owner of two lots known as Nos. 7 and 8 of the Atwater & Andrews tract, in the city of Rochester. On the 22d day of August, 1893, the common council of that city passed an ordinance by which it determined to open a street, 90 feet in width, from Central avenue to Granger street, the west line of which should be the west line of lot No. 7, and the east line of which should be the east line of lot No. 8; that the territory necessary to be taken therefor consisted of the lots mentioned; and that the whole expense of such improvement should be assessed upon the portion of the Third ward lying south of the north line of the New York Central & Hudson River Railroad. In pursuance of that ordinance, proceedings were instituted by the defendant to condemn and acquire the title to the plaintiff's lot under the provisions of its charter. Such proceedings were had that on the 18th of January, 1894, the county court of Monroe county appointed three commissioners to appraise the damages the plaintiff would thereby sustain, and the compensation she should receive therefor. The commissioners met, duly qualified, and, after inspecting the property to be taken, heard the proofs and allegations of all parties interested, made their report, with the evidence taken by them, and the same was filed in the Monroe county clerk's office and in the office of the clerk of the city of Rochester on the 28th day of March, 1894. By their report they fixed and appraised the damages of the plaintiff at the sum of $40,000. On the 29th of March, 1894, the report of commissioners was presented to the common council, which thereupon fixed the 3d day of the following April as the time for hearing objections to its confirmation. At a regular meeting held on that day this report was taken up for action thereon. No allegations against its confirmation were made, except that the alderman who represented the ward in which the street was proposed to be opened stated that in his opinion the award of damages was excessive, and the value of the property did not exceed $20,000, and the assistant city attorney stated that in his opinion the award was excessive, and the market value of the property did not exceed the sum of $15,000 or $16,000. No proof to sustain those allegations was taken by the common council, but it at once adopted a resolution setting aside the report of the commissioners, refered the matter to new commissioners to be appointed by the Monroe county court, and directed the city attorney to make the necessary application for their appointment. At that meeting the plaintiff presented a written communication to the common council, requesting that, in case it set aside the report, it should also repeal the ordinance for the opening of the street, and that no further proceedings should be taken to condemn the land in question, but that the opening of such street should be abandoned. This communication was received, filed, and published. Upon its receipt the common council at once passed a further resolution requiring the city attorney to give notice to the plaintiff, and to others whom it might concern, that an application would be made to the Monroe county court on May 7, 1894, for the appointment of new commissioners to ascertain and appraise the compensation which the plaintiff was entitled to receive by reason of taking said lots for the opening of the proposed street. This action was thereupon commenced to enjoin and restrain the defendant from applying for the appointment of new commissioners, upon the ground that it charter gave it no such power, or, if it did, it was to that extent unconstitutional and invalid. No further proceedings have been taken under that resolution. Upon the trial the foregoing facts were admitted by the parties, and the court, after finding them, held that the action of the common council relating to the appointment of new commissioners and setting aside the award of the first commission was in all respects regular and legal, and that the defendant was entitled to a judgment dismissing the complaint, with costs. From that decision an appeal was taken to the appellate division in the Fourth department, where the judgment of the special term was affirmed by a divided court.

The first and practically the only question relating to the merits of this controversy is whether, in the proceeding for the condemnation of the plaintiff's property, the common council of the defendant had authority under its charter to set aside the report of the first commission, and authorize the city attorney to make application for the appointment of a new one. The defendant contends, and the courts below have held, that it possessed that power. It relies upon section 179 of the charter to sustain that conclusion. That section provides: ‘Upon the filing of such report the said common council shall assign a time for hearing objections to the confirmation thereof, and at the time assigned shall hear the allegations of all persons interested, and may take proof in relation thereto from time to time, and shall confirm the said report, or may set the same aside and refer the matter to the same or to new commissioners to be appointed by the said court as before, who shall, thereupon, proceed as hereinbefore provided. But the common council may set aside said report and abandon said improvement at any time before the final confirmation of the assessment roll hereafter mentioned.’ Laws 1880, c. 14. Thus, the precise point presented is whether upon the filing of the report the common council could set it aside, and have a new commission appointed upon its own motion, and without any proof or allegation other than the bare statements of one of its members and the city attorney that the award was excessive. The counsel for the respondent insists that this authority is expressly conferred by that section. If this contention is correct, the common council might set aside any number of reports that were made by commissioners to appraise the plaintiff's damages, upon the mere assertion of one of its members or officers that the award was excessive, and thus compel her to defend as many proceedings for appraisal as it saw fit to order. We find no such authority in the section relied upon. We cannot believe that in adopting that provision it was the purpose of the legislature to authorize the common council to arbitrarily set aside the report of a commission, and have a new commission appointed, because it or some officer of the city might assert that the compensation was too great, or to confer upon it the right to have as many successive appraisals in the same proceeding as it thought advantageous to the city. The injustice of such a power is manifest. If that right existed, the common council might, where the value of the property involved was inconsiderable, compel the owner to expend its entire value in defense of his title and in seeking to obtain just compensation, and thus substantially confiscate his property. Moreover, if this statute was to be thus construed, its constitutionality would be difficult to maintain. With our views of this case, however, we do not regard it necessary to decide as to the constitutionality of such a statute. Therefore, as this court does not usually determine such questions unless necessary to the decision of the case under consideration, the constitutionality of this provision, if construed as claimed by the respondent, will not be considered or determined.

But if it were to be assumed that under this statute the common council might, in a proper case, set aside an award because it was excessive, it by no means follows that it could do so without any proof of that fact except the mere unverified statement of parties who were interested in the litigation. It is to be observed that the statute provides that the common council shall assign a time for hearing objections to the confirmation of the report, and that at the time appointed it shall hear the allegations of persons interested, and may take proof in relation thereto. As was said by the late Mr. Justice Follett in his dissenting opinion in this case: ‘The word ‘allegation,’ in legal parlance, usually denotes the formal averments of the parties interested, setting forth the issue which they are prepared to prove. Mere allegations, unless...