
    In the Matter of the Application of the Board of Street Opening. In the Matter of One Hundred and Twenty-Eighth Street.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    Municipal Corporation—Opening street.
    Section 990 of the Consolidation Act does not apply to streets, which the municipal hoard is authorized to open whenever, in its opinion, the interest of the public demands it.
    Appeal from an order affirming the report of the commissioners, and refusing to discontinue proceedings.
    
      Louis Marshall, for app’lt; John P. Dunn, for resp’t.
   O’Brien, J.

This board of street opening and improvement presented to this court a petition reciting that it was necessary, useful, and proper for the public interest to acquire title, for use as a public street, to certain lands upon what would be, when opened, 128th street, between Amsterdam avenue and Convent avenue, in this city. The commissioners appointed pursuant to the petition made a report awarding as damages to divers persons the sum of $1,105, taxing the costs at $1,006.48, and assessing those claimed to be benefited $2,111.46. Of the assessments thus laid, nearly $1,900 was against the appellants, who, upon the application to confirm the report, moved for the discontinuance of the proceedings, pursuant to the provisions of section 990 of the consolidation act (Laws 1882, c. 410), which; among other things, provides that:

“Upon the coming in of the said report * * * if persons who appear by the said report to be interested, either by assessment for benefit or award for damages, to the amount of a majority in amount of the whole assessments and awards, shall appear and object to further proceedings upon the said report, the court shall order the same to be discontinued, and the same shall thenceforth be discontinued.”

There can be no doubt that, if this section has application to a proceeding such as was here initiated, it is controlling, and the appellants were entitled to a discontinuance of the proceeding as a matter of right. The question is, does this section apply to a proceeding such as this? By the Laws of 1807, and subsequently by thé Laws of 1839 (chapter 209), 1873 (chapter 335), 1874 (chapter 604), and 1876 (chapter 436), statutes were passed regulating and providing for the opening of streets in different portions of the city. There were afterwards brought together, and now appear in chapter 410 of the Laws of 1882, known as the “ Consolidation Act.” Section 990 of that act was originally a portion of the act of 1839 (chapter 209), being a general act relative to assessments. Section 105 of chapter 335 of the Laws of 1873 (now section 955 of the consolidation act) confers upon the board of street opening the power, whenever they deem it for the public interest to lay out new streets south of Fifty-ninth street Section 956 of the consolidation act confers similar power upon the department of public works above Fifty-ninth street, except in- the Twenty-Third and Twenty-fourth wards, in which wards, by the next section, the power is conferred upon the department of public parks. In this (section 957) and the following section, relating to the power of the department of public parks with respect to the. mode of acquiring title for the use of the public to lands required for streets in the Twenty-Third and Twenty-Fourth wards, the provisions are taken from chapter 604 of the Laws of 1874, and notably those portions of section 958 which permit such department, whenever it shall deem it for the public interest so to do, to acquire lands for streets, avenues, roads, public squares and places laid out by them. By chapter 436 of the Laws of 1876 streets to be laid out by the park department .under chapter 604 of the Laws of 1874 were to be divided into three classes, viz. first, second, and third. Streets of the first class were to be opened whenever, in the opinion of the department of the city government having control of such opening, the interest of the public demanded such opening; streets of the second class were to be opened only on the petition of the owners of one-third of the linear feet of frontage on such streets; and streets of the third class were to be opened only on the petition of the owners of three fourths of the linear feet of frontage. In re Rider Ave. (No. 324, vol. 31, 1885, Ct. App. Cas., at Bar Ass’n) 36 Hun, 645; 99 N. Y. 683, which was a proceeding initiated in 1885 by the pubic-authorities, an application such as is here made was presented, for leave to discontinue by property owners representing the necessary majority of awards and assessments, under section 990 of the consolidation act, and it was held that that section did not apply ; the judge at special term, in his opinion, saying:

“ Eider avenue is an avenue of the - first class, under the provisions of the act of 1874, just referred to, and can therefore be opened, if the commissioners are of the opinion that the interests, of the public demand such opening and grading.”

It will thus be seen that prior to the consolidation act the provision permitting a discontinuance did not apply to all proceedings relating to street openings, or the laying out of public squares or spaces,—it being, in effect, held that the act of 1839 is general in its provisions, and applies to all cases not governed by any special act; that, as the power was given by the act of 1876 to the “ board or department of the city government having control of such opening ” to open streets of the first class, as to such streets the act of 1839 was superseded. There is authority, there fore, for the proposition that the general character of the act- of 1839 is to be limited by special acts conferring power upon departments of the city government; that where such power is given m the public interest, and it is attempted to be exercised, it cannot be nullified by án appeal to the act of 1839, conferring the right, upon the majority of property owners to be affected. See, also, In re Board of Street Opening 16 St. Rep. 91. In this last case it appeared that the legislature declared that a certain plot of land thereafter should be known on the map of the city as a public place; held, that section 990 had no application to such a proceeding, but referred only to cases in which there were both awards for damages and assessments for benefits, not to those in which a tax was laid upon the city at large. Although, as now found in the consolidation act, the classification of streets in regard to other portions of 'the city is not so marked or distinct, it will 'be found that a distinction is always made between those streets that are tó be opened pursuant to the power conferred upon the-public authorities, and those opened upon the application of the-property owners. Section 955, c. 410, of the Laws of 1882, and chapter 185 of the Laws of 1885, authorized the board of street opening and improvement to lay out and open streets, avenues, etc., “ wherever they may deem it for the public interest so to-do ;” and the counsel to the corporation is required, upon the request of said board, to immediately take proceedings to acquire title to the land to be taken. Section- 963, c. 410, of the Laws of 1882, authorizes the mayor, aldermen, and commonalty of the city of Hew York to open any street, avenue, etc., laid out by the commissioners under the act of 1807, either of their own volition, or upon the petition of three-quarters of the linear frontage thereon. It provides:

“* * * And also whenever and as often as so many proprietors of lands fronting on any such street * * 1 * as shall together own three-fourths parts of all the lands fronting on such streets * * * shall by petition desire the said mayor, aider-men and commonalty to open any such street * * * and the said mayor, aldermen and commonalty shall deem the opening thereof to be necessary or useful it shall be lawful for the said mayor, aldermen and commonalty to cause the same to be opened.”

We think that there is force, therefore, in the claim of the city that this classification of streets into those that the public authorities could open of their own accord, and those for the opening of which proceedings should bé initiated by the property owners themselves was not intended to be disturbed by the act of 1839, of which section 990 of the consolidation act is a part In different portions of the consolidation act, we find the right conferred upon the public authorities, whenever they deem it for the public interest, to open streets, avenues, or public places. If it could be held that section 990 had reference to proceedings so initiated by the public authorities, then it necessarily would be restrictive of the power which, in the broadest terms, is given to them, whenever they deem it for the public interest, to open and lay out streets and public places. As stated, the act of 1839 was general, and related to all proceedings connected with public improvements wherein there were assessments and awards. ' But the acts of conferring the power upon the different boards and departments of the city, being special, must be given force and effect, in view of their purpose and scope, and in the public interest. We think that this can be done by leaving, as the legislature undoubtedly intended to leave, in the public authorities, the right to proceed with public improvements in the way of street openings, without interference by a majority of the owners affected by such improvements. But in regard to streets and avenues, where such officers proceeded upon the petition of the property owners themseves, we think that section 990 applies; and upon the coming in of the report, if it appears that a majority in interest object, they have the right to discontinue the proceedings. This construction only can harmonize the conflicting provisions of the consolidation act, relative to public improvements.

In this particular case, we think, £or another reason, that the judge below was right. It is true that the appellants are the owners of the equity of redemption in lands abuttings upon the proposed street; but it also "appears that such lands are mortgaged for very large amounts, and that the mortgagees were neither present upon the motion, nor have they consented to a discontinuance of the proceedings. That the mortgagees have such an interest in the property, within the meaning of the section, we think apparent. As they have not united with the owners of the equity of redemption, it cannot be said, upon the evidence furnished to the court below, that those appearing and consenting represented a majority in amount of those who were interested.

We think the order below was right, and should be affirmed, with $10 costs and disbursements.

All concur.  