
    In the Matter of The City of Rochester to Acquire Lands for Park Purposes.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1893.)
    
    1. Condemnation proceedings—Laws 1888, chap. 193—Notice.
    In proceedings to take the property of an owner for park purposes under chap. 193, Laws 1888, the notice required by the statute was not given, but the preamble and resolutions passed by the common council, which recited that a map of the lands proposed to be taken and a copy thereof had been duly made, certified and filed, as required by law, and which set forth the intention of the city to apply for the appointment of commissioners to take the pieces of land described, were published in full in the newspaper chosen by said resolution. Held, that the publication of the resolutions of the common council in full answered every requirement of the statute.
    Same—Constitutional law.
    The twenty-ninth section of the act provides that all other lands acquired by the city under its provisions may be sold at public auction whenever the board of park commissioners shall determine that the same, or any parcel thereof, is unnecessary to be longer used for the purpose of the commission. Held, that this is not unconstitutional.
    Appeal from judgment of the supreme court, general term, fifth department, affirming orders appointing three commissioners to ascertain and report the just compensation to be paid for lands of appellant.
    
      John Desmond, for app’lt;
    
      Edward Harris, for resp’t.
    
      
      
         Affirming 48 St. Rep., 358.
    
   O’Brien, J.

The city of Rochester is empowered by chapter-193 of the Laws of 1888, to acquire lands, by condemnation proceedings, for use as a public park. The supreme court made an order appointing commissioners to condemn the lands, an'd subsequently another order confirming their report. The appellant, a property owner interested in some of the - lands so taken, appealed to the general term from both orders, which were there-affirmed, and he now appeals to this court. The principal contention of the appellant at the general term was that the compensation awarded to him for his lands taken was inadequate; and, upon this question the court, with power to examine all the evidence, held against him, and, we think, properly. No erroneous, principle of estimating the damages was adopted, nor was any ruling made, or testimony admitted, that was prejudicial to him. In this court there are but two questions presented that are necessary to be noticed.

First. That the notice required by the statute was not given. The city authorities caused to be published in the manner and for the period of time required by the statute, a preamble and resolutions passed by the common council, in which it is recited that a map of the lands proposed to be taken, and copy thereof, had been duly made, certified and filed, as required by law ; that a resolution of the common council, declaring the intention of the city to-f¿ake the pieces of land described therein, had been duly passed, and notice of such intention given, as required by the statute that the city hereby declares that it has determined to take and appropriate the several lots, parcels and plots of land therein particularly described, and which have been selected by the park commissioners as desirable for a public park. That notice of such determination be published in a newspaper of the city, which was. named and designated for that purpose, and that the city would apply to the supreme court, at a time and place named, for the appointment of commissioners to ascertain and report the-just compensation to be paid to the owners or persons interested in the lands described. The resolution in full was duly published.

It is urged by the appellant that this was not a notice, as it was. not entitled in the court where the proceedings were to be instituted, or directed to the person or persons to be affected, or signed by the party giving it, or his agent or attorney. The fifth section of the act requires notice of the determination to be published the form of the notice is not prescribed. Its object was to inform the property owners and the public that it had been determined to take lands described, and that an application for the appointment of commissioners would be made at a time and place where-all parties interested could be heard. The publication of the resolutions of- the common council in full answered every requirement of the statute, as they contained all the facts necessary to-give the required information, and this was a sufficient notice.

Second. The 29th section of the act provides that all other-lands acquired by the city under its provisions may be sold at. public auction whenever the board of park commissioners shall determine that the same, or any parcel thereof, is unnecessary to he longer used for the purpose of the commission. It is claimed that this provision is in conflict with the provisions of the constitution respecting the taking of private property for public use, as it in fact authorizes the city to take it for a purpose not public. We think the objection is without merit or substance. Of course the city could not take private property for the purpose of selling it or dealing in it; but having once acquired it for a park, and it becoming, in the course of time, unnecessary or useless for that purpose, by the growth of the city or other changes in the situation, a sale in the manner prescribed by the statute would be within the legitimate functions of the city as a municipal corporation, and power to that end, conferred by the legislature at any time, or in the act authorizing the taking, cannot invalidate the delegated right to exercise the power of eminent domain.

The order should be affirmed, with costs.

All concur.  