
    Charles T. Barney et al., Resp’ts, v. The Mayor, etc., of the City of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May, 1894.)
    
    
      1. Taxes—Department oe Public Parks—Power.
    The department of public parks in the city of New York has no power to lay out a park within any district outside of the twenty-third and twenty-fourth wards.
    
      % Same—Exemption. ?
    Land situated within the lines of a proposed park outside of said wards is not, therefore, exempt from taxation.
    Motion for new trial by the defendants upon exceptions ordered to be heard, in the first instance, at 'the general term.
    
      O. L. Sterling, for motion; J. A. Flannery, opposed.
   Van Brunt, P. J.

This action was brought to recover from the city of New York a sum of money paid as taxes for the year 1887, upon certain real estate between Twelfth avenue and the Harlem river, at about One Hundred and Ninetieth street. It is claimed upon the part of the plaintiffs that the tax imposed was illegal and was. paid by them involuntarily; and that they were entitled to recover the amount. The plaintiffs’ land is within the lines of a so-called park, shown on a map filed by the commissioners of the department of public parks in the city of New York on the 17th of April, 1884, they claiming to act in pursuance of authority conferred upon them by chap. 410 of the Laws of 1882. It is urged that by chap. 530 of the Laws of 1885, amending § 672 of the Consolidation act, such lands were exempt from taxation ; and that they were taxed and the tax paid, in ignorance of the exemption, and that such payment was involuntary.

In view of the decision of the court of last resort in respect to involuntary payment of taxes and assessments, we think that the plaintiffs brougiit themselves within the rule authorizing a recovery.

The question as to whether the lands of the plaintiff were exempt from taxation, and therefore, the tax levied was illegal and void, presents a question of much1 greater embarrassment. There is no question but that tlie department of public parks did file a map showing a park thereon, which included the premises of the plaintiffs and if such department had the power to lay out such park under the authority given them by law, then the tax levy was illegal and void. This question of power, it seems to us, must be determined by the Consolidation act, as by that act the other provisions of law, conferring. powers upon the department of public parks in this respect, seem to have been repealed; because the Consolidation act presents a complete and revised system for laying out and opening public places, and providing for the proceedings in respect thereto.

By § 670-of the Consolidation Act it is provided that: “The department of public parks shall have and possess exclusive power to lay out, survey and monument all streets, roads, avenues, public squares and places within that part of the city of New York, north and east of a line commencing at the termination of the southerly line vof One Hundred and Fifty-fifth street,” etc.-—a description covering the territory in which the lands of the plaintiff were situated. And the question presented is whether a park is to be considered a public square or place within the. provisions of. this section. The history of legislation prior to the adoption of the Consolidation act, which was in 1882, shows but little uniformity in legislative designation of public parks, public squares and public places. Many of the largest parks of the city were designated as public places, and spoken of as public places. But since the establishment of the department of public parks in 1870, there has been seemingly a disposition on the part of the legislature, in dealing with the question of public parks and public places, to make a distinction. And it is significant that in § 671 (the section following the one'to which attention has been called), in treating of the territory embraced in the Twenty-third and Twenty-fourth wards, and in conferring power upon the' department of public parks in respect thereto, it is provided that such department shall have the exclusive power to locate and lay out, construct and maintain all public parks, streets, roads, avenues, etc., apparently showing that the legislature had in mind the question of public parks, as distinguished from anything that had been referred to in the preceding section, in which the department was given the power to lay out, survey and monument all streets, avenues, public squares and places within the .territory described, but not to construct or maintain anything said to be public parks. Had legislation stopped here, we think there would have been no question in regard to the fact that the legislature did not intend that the department of public parks should have the right to lay out, survey and monument public parks within any district outside of the Twenty-third and Twenty-fourth wards. But when the legislature comes to confer the power to acquired the title of the land in the Twenty-third and Twenty-fourth wards, it uses this language:

“ Section 677. The Department of Public Parks for and in behalf of the Mayor, Aldermen and Commonalty of the City of New York is authorized to acquire title for the use of the public to all or any lands required for the streets, avenues, roads, public squares and public places laid out by them in the Twenty-third and Twenty-fourth Wards the City of New York ” — public squares and public places not having been mentioned in § 671, which gave the department the power to lay out, construct and maintain ; and public parks not being mentioned in § 677, which gave the department the right to acquire title.

By § 956 it is provided that the department of public works shall possess certain powers in relation to the opening of streets, avenues, roads and public places above Fifty-ninth street, except in the Twenty-third and Twenty-fourth wards, and not embraced within the limits of- or immediately adjacent to any park or public place except as in this act otherwise provided.

Then by § 957 it is provided that the department of public parks shall have the exclusive power to locate and lay out all public parks, streets, roads, avenues, and to devise plans, etc., in the Twenty-third and Twenty-fourth wards And § 958 seems to be an exact copy of § 677.

It will thus be seen that in many of the sections in which this subject is referred to, distinctions between public parks and" public places seem to be maintained, and that it is only by giving the most enlarged signification to the language used by the legislature th-tt it can be held that under § 670 the department of public parks hadtlie right to lay out, survey and monument the parkin question. It is true that in §§ 677 and 958, in dealing with the question of the laying out of the Twenty-third and Twenty-fourth wards, the words public squares and places are mentioned in respect to the acquisition of title, when the legislature, in dealing with the question' of the power to locate and lay out, did not use such words, but the words public parks. It seems to us that the only result of this difference is that the legislature, perhaps, intended to give authority to the department of public parks to lay out parks in the Twenty-third and Twenty-fourth wards, but did not intend that .they should be able to consummate their design by the acquisition of title, so that they might construct and maintain.

Without being able to satisfy our minds entirely, in consequence of the confusion of language in the legislation respecting this matter, we do not think that such an extraordinary power should be deemed to have been conferred by the legislature upon the department of public parks, unless the acts to be construed show a reasonably clear intention so to do. We think that such intention is not by any means clear, but that a distinction seemingly having been recognized between public parks and public places, as above mentioned, and no clearly defined pover having been conferred upon the department to lay out public parks, and there being nothing to indicate any intention to confer -such power, it .should be held that such department did not possess the same,

The exception should be sustained and a new trial ordered, with costs to the defendant to abide the event.

Follett and Parker, JJ., concur.  