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and 118 New York State Reporter avenue shall be united in the same application, it shall be the duty of the said commissioners to receive and to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage, or of the benefit and advantage, if any, over and above the loss and damage, as the case may be, to the respective owners or lessees respectively entitled unto or interested in the lands, tenements, and hereditaments fronting on any road or street, which application may be made to close as aforesaid, by and in consequence of closing any such road, or opening, extending, enlarging, straightening, or altering any such street or public place. Section 10 of the act provided that, when application shall be joined as aforesaid, it shall be the duty of the commissioners to deduct from the amount of the damages which may be sustained by and in consequence of the opening, laying out, and forming any street, public place, or otherwise improving any street or public place, the amount which the road may be worth, if any, over and above the sum which the said mayor may be required to pay for the same as aforesaid, and to assess that sum upon the said mavor, or, if the sum which they shall be required to pay for the same shall exceed the value of the same, then it shall be the duty of the said commissioners to award to the said mayor the amount of such deficiency, and to assess the same upon the property of those which may be benefited as aforesaid.
There was here prescribed two methods of ascertaining the loss to abutting owners by the closing of a street. The municipality was entitled to apply to the Supreme Court for commissioners to appraise the value of the easement of the abutting owners in the street closed, and were then required to pay the amount awarded to such owners. Where, however, the municipality united in one proceeding an application to close a street and to open an adjoining street, then one report was contemplated, in which all questions as between the abutting owners and the city were to be finally disposed of. And these provisions of the act of 1818 were continued in consolidation act (Laws 1882, p. 283, c. 410) § 1010. But this provision as to one proceeding related only to a proceeding where the municipality applied in one proceeding to close one street and open another, and did not relate to a case where a street had been closed or discontinued by law prior to the time of the application for the appointment of commissioners.
Prior to the passage of the act of 1895 (Laws 1895, p. 2037, C. 1006), under which this application is made, many streets and avenues in the city of New York had been discontinued, or were inconsistent with the plans of the city of New York which had been adopted by the municipal authorities. By chapter 1006, p. 2037, of the Laws of that year, provision is made for closing streets and avenues that were inconsistent with the plans of the city as finally adopted. Section 2 of that act provides that after the final adoption of the map of the city of New York the streets shown thereon should be the only lawful streets or avenues in the city, and all other former streets or avenues not shown thereon should cease to be or remain, for any purpose whatever, public streets or avenues. The act also authorizes the public authorities to discontinue or close any street or avenue laid out upon such general plan, and provision is then made for ascer
taining the damage sustained by any property abutting on such street or avenue so closed; and upon such application the court is required to appoint commissioners of estimate and assessment for the purpose of performing the duties prescribed by sections 4 and 5 of the act. Section 6 prescribes the proceeding for the appointment of such commissioners. That section contemplates the appointment of independent commissioners, and a report in relation to the damage caused by the closing of any street or avenue, and that the damages which may be allowed by said commissioners, and all expenses incurred in the proceeding to ascertain such damage, shall be assessed by the commissioners upon the property benefited thereby, to the extent of the benefit so received, in the same manner as assessments for acquiring land for streets or avenues in such city are assessed as provided by existing laws relating thereto. Provision is made for the payment by the city of New York to the persons in whose favor awards are made. Section 14 of the act provides that whenever, as often as the local authorities shall institute proceedings to open any street or avenue laid out upon the general or permanent map or plan of such city, or district thereof, which shall be contiguous to or in the neighborhood of any lot or parcel of ground fronting on any street or avenue which they have discontinued and closed, and proceedings have not been had or completed to ascertain the damage caused by such discontinuance or closing, the court which shall appoint or has appointed commissioners of estimate and assessment in respect to such opening may at any time, upon the application of the chief law officer or counsel to the corporation of such city, or of any party or person interested in the land fronting upon the street or avenue so discontinued and closed, order and provide, if it should appear to the said court to be expedient and proper, that the same commissioners of appraisal or of estimate and assessment shall ascertain and determine the compensation which should justly be made for any loss and damage to the respective owners, lessees, parties, and persons respectively entitled in possession, reversion, or remainder unto, in, and to, or included in, any lands or interests taken, affected or damaged by and in consequence of the discontinuance and closing of the said street or avenue; and the said commissioners of appraisal or of estimate and assessment shall thereupon make such estimate accordingly, and the proceedings to ascertain and determine the same shall be conducted and completed in accordance with the provisions of existing laws relative to the opening of the street or avenue for which the said commissioners were appointed, "except that any parcel of land deemed to be benefited may be assessed to the extent provided for in section six of this act, and the amount awarded for and by reason of such discontinuance or closing shall be included in the amount of the expenses to be assessed upon the property benefited in said proceeding. From and after the making and filing of the order of the court instituting or consolidating said proceedings as aforesaid, no further or other proceeding shall be taken relative to ascertaining and determining the compensation which should be made for such discontinuance or closing."
and 118 New York State Reporter It is under this provision of this section that the commissioners in this proceedng were directed to ascertain and report the amount due to these appellants for the damages sustained by them in consequence of the closing of Gerard avenue. A comparison of this act of 1895 with the act of 1818 will show that the act of 1895 was based upon the provisions of the act of 1818 and the proceeding under it. By the act of 1818 two separate proceedings were contemplated-one based solely upon the petition of the municipal authorities to discontinue a street, and one upon a joint proceeding to discontinue one street and open a street adjoining or contiguous thereto. By the act of 1895 a proceeding was authorized where a street had been discontinued by operation of law; and, where such a street had been or thereafter should be discontinued, it was niade the duty of the corporation counsel to institute a proceeding to ascertain and determine the damages that had been sustained by the property abutting upon such street. This was entirely distinct from a street-opening proceeding, and had no relation to the opening of any street or avenue. Section 14 authorized the court, “if it shall appear to the said court to be expedient and proper,” to appoint the same commissioners to make this estimate as were appointed to open a street or avenue contiguous to or in the neighborhood of a lot or parcel of land fronting on a street or avenue which had been discontinued and closed; but the duties imposed upon the commissioners thus designated to make such an appraisal were entirely distinct from the duties imposed upon the commissioners for the opening of the street. Thus the same commissioners were appointed to perform independent duties, and were to make a just and true estimate of the compensation that should be made for any loss or damage caused by the closing of the streets or avenues described in the petition, and also the benefit and advantage to the lands or premises benefited by such discontinuance or closing, "and to report thereon to said Supreme Court without unnecessary delay. In said report the commissioners were requested to set forth the names of the respective owners entitled to or interested in the lands to whom compensation should be made, or which should be assessed for benefit, and other details in relation to the inquiry which they were directed to make. I can find no provision of this act that requires the commissioners to delay the report in the street-opening proceeding until they have finished their investigation in the proceeding which relates to the closed and discontinued street. There would seem to be no objection to the commissioners including the separate matters in one report, if in their opinion the questions could be thus disposed oí; but it is quite evident that conditions might arise which would render it improper to include in one report both subjects, and that question should be, we think, left to the discretion of the commissioners. Where the same property was affected by both proceedings, it might be practicable to include them both in one report; but, in making the assessment upon property affected by the street-opening proceeding, the commissioners are not restricted to one-half the value of the property assessed in the proceeding in relation to the closed street, as they are in a proceeding to open a street. Where there is property affected by a proceeding in relation to the closed street which is not affected
in the street-opening proceeding, as the statute contains no provision which requires the commissioners to make but one report as to both proceedings, we think the better practice is that the commissioners should make a separate report. Where they have refused to make such a report, reserving the question in relation to the closed streets for a separate report, there is no reason suggested why the streetopening report should be sent back, and the proceeding delayed until the investigation as to the closed street is finished.
We have thus come to the conclusion that the Special Term correctly refused to interfere with the report of the commissioners in relation to the opening of 168th street, and it follows that the order appealed from should be affirmed, with $10 costs and disbursements
VAN BRUNT, P. J., and PATTERSON and McLAUGHLIN, JJ., concur.
LAUGHLIN, J. (dissenting). This was originally a proceeding for acquiring lands for opening 168th street (formerly Charles Place) from River avenue to the Concourse, and the commissioners of estimate and assessment were appointed on the 8th day of October, 1896. By an order made on the 30th day of April, 1897, upon the application of the appellants whose lands abutted on the northerly side of 168th street, the proceeding was extended, pursuant to the provisions of chapter 1006, p. 2037, of the Laws of 1895, to embrace an appraisal of the damages and an assessment of the benefits sustained by property by reason of the closing of part of Gerard avenue between 168th and 169th streets. The application for that order was opposed by the city, which took an appeal therefrom, but on appeal the order was affirmed both in this court and by the Court of Appeals. Matter of the Mayor, 28 App. Div. 143, 52 N. Y. Supp. 588; Id., 157 N. Y. 409, 52 N. E. 1126. Charles Place, as it formerly existed, was widened and laid out as 168th street, and this proceeding was originally instituted to acquire the lands not theretofore embraced in Charles Place. Gerard avenue was laid out and the title thereto acquired by the city for street purposes in 1887, and the appellants' lands also abutted on that avenue, and were assessed in that proceeding. In 1894 a map or plan of that portion of the city was adopted by the board of street openings and improvements, and the lines of Gerard avenue, as formerly laid out, were thereby altered and changed, and a portion of that avenue was closed, cutting off the frontage of the appellants thereon. It is conceded that the city owned the title, for street purposes, of that part of Gerard avenue which was closed, and the proceeding to close the same was legal, so that the part indicated as closed has ceased to be a public highway, and has become the property of the city, subject to a statutory right of the owners of the abutting property to purchase the same. The part of the avenue thus closed which abuts on 168th street lies between that street and 16gth street. The commissioners on the 18th day of November, 1901, made and filed a preliminary abstract of awards for damages and assessments for benefits for the closing of Gerard avenue, and advertised the same for objections. Thereafter, and on the 12th day of December, 1901, they filed a preliminary
and 118 New York State Reporter abstract of awards and assessments for opening 168th street, without including therein any estimate of damages or assessments for closing Gerard avenue. On the 16th day of June, 1902, the commissioners filed a final report of awards for damages and assessments for benefits for the opening of 168th street, but did not include therein either awards or assessments incident to the closing of Gerard avenue. The last-mentioned report is the only one which has been confirmed. The appellants objected to its confirmation upon the ground that only one report of awards and of assessments for benefits could be made by the commissioners, and that the practice pursued was both irregular and unauthorized, and this is their sole contention upon the appeal.
I am of opinion that the practice adopted cannot be sustained. is unnecessary to determine at this time whether the order of the court made pursuant to the provisions of chapter 1006, p. 2037, of the Laws of 1895, extending this street-opening proceeding to embrace damages and assessments for benefits on account of the closing of Gerard avenue, is necessarily an adjudication that all property benefited by the opening of the street is benefited by the closing of the avenue, and is therefore assessable for the damages awarded on account of the latter, or whether, if this be the effect of the statute, it would be constitutional, or as to the extent to which the adjudication would be binding. The object and scope of the act of the Legislature in question were quite fully considered by this court and by the Court of Appeals on the appeal to which reference has been made. These questions do not require extended consideration now. It may be stated generally that this act authorized the closing of streets and avenues, and prescribed proceedings, independent of street-opening proceedings, for the appointment of commissioners to determine the damages sustained thereby, and for the payment of the awards by the city, and for the assessment thereof, so far as practicable, upon the lands benefited. The Legislature then provided, by section 14 of the act, that when proceedings are instituted to acquire land for opening"Any street, avenue, public square or place laid upon the general or permanent map or plan of such city or district thereof which shall be contiguous to or in the neighborhood of any lot or parcel of ground fronting upon any street, avenue, road, highway, alley, land or thoroughfare which they have discontinued and closed as aforesaid, and proceedings had not been had or completed to ascertain the damage caused by such discontinuance or closing. the court which shall appoint or has appointed commissioners of estimate and assessment in respect to such opening may at any time, upon the application of the chief law officer or counsel to the corporation of such city, or upon any party or person interested in the land fronting upon the street, avenue, road, highway, alley, lane or thoroughfare so discontinued or closed, order and provide, if it shall appear to the said court to be expedient and proper, that the same commissioners of appraisal or of estimate and assessment shall ascertain and determine the compensation which should justly be made for any loss and damage to the respective owners, lessees, parties and persons respectively entitled in possession, reversion or remainder unto, in and to, or included in any lands, tenements, hereditaments, premises, easements, rights or interests taken, affected or damaged by and in consequence of the discontinuance or closing of said street, avenue, road, highway, alley, lane or thoroughfare of such part or portion thereof as the said court may direct and specify in said order, and the said commissioners of appraisal or of estimate and assessment shall thereupon make such estimate accordingly, and the proceedings to ascertain and determine the same shall be conducted and completed in