
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, etc., for the Purpose of Opening Mount Vernon Avenue, etc., from Jerome Avenue to the Northern Boundary of the City of New York, etc., in the Twenty-fourth Ward of the City of New York. Samuel H. Valentine, as Sole Surviving Executor of and Trustee under the Last Will and Testament of Samuel M. Valentine, Deceased, Appellant; The City of New York, Respondent.
    First Department,
    July 8, 1908.
    Eminent domain — street opening — right to discontinue.
    On the condemnation of land in the city of Mew York for the purpose of opening streets, ti^le does not pass to the city until the final confirmation of the report of the commissioners of estimate and assessment.
    " At any time before the title passes, the hoard of estimate and apportionment has power under section 1000 of the charter to-discontinue all proceedings for opening streets or parts thereof.
    A resolution of the hoard of street opening and improvement of the city of Mew York directing that the title to certain lands vest in the city on a certain date does not so expropriate the lands to the public use that thereafter and before the date set for the vesting of title the hoard cannot rescind the resolution.
    
      Appeal by Samuel H. Valentine, as. executor and trustee, etc., from certain portions of an order of the Supreme Court, made at the Mew York Special Term pul entered in the office of the clerk of the county of Mew York on the 23d day of January, 1907, confirming the report of commissioners of estimate and assessment herein.
    
      Barclay E. V. McCarty of counsel [Jared G. Baldwin, Jr., and William H. Snowden with him bn the brief], for the appellant.
    
      John P. Dunn of counsel [James Regan Fitzgerald with him on the brief], Francis K. Pendleton, Corporation Counsel, for the respondent.
   Clarke, J.:

This is an appeal by Samu.el H. Valentine from an order of the Special Term confirming the report of commissioners of estimate and assessment as to awards for damages in a street opening proceeding upon the ground that.no award was made to him.

The board of street opening and improvement of the former city of Mew York on the 15th day of May, 1896, adopted a resolution requesting the counsel to the corporation to take the necessary proceedings to acquire title for the purposes of a public street to the lands required for the purposes of opening Mount Vernon avenue from Jerome avenue to the northern boundary of the city of Mew York, and directing that the entire cost and expense be assessed upon the property deemed to be benefited. This resolution prol vided that upon a date to be thereinafter more fully specified, and not less than six months after the filing of the oaths of the commissioners of estimate and assessment, the title to any land so required should, vest in the city. The proceedings contemplated at that time included property lying between Jerome avenue and Two. Hundred and Thirty-third street, and the proposed street ran through lands of the Woodlawn Cemetery. On the line of the proposed street, as laid out, an irregular strip from the land of Valentine'was to be taken which had a diagonal base 114.21 feet in length, extending across the whole roadway at its southern extremity, and at the northern was diminished to 23.33 feet. This gore appears to have been 698.84 feet lone'.

The commissioners were appointed June 25, 1897, and took their oaths on- August , 27, 1897. On September 10, 1897,, a resolution was adopted by the board of street opening and improvement directing that title should vest in the city’ on March 7, 1898. On the motion for the appointment of commissioners, objection was made on behalf of the Woodlawn Cemetery Association upon the ground that without the consent of the cemetery authorities or special permission of the Legislature the city did not have the right to acquire title for street purposes to that part of Woodlawn Cemetery lying between Jerome avenue .and Two Hundred and Thirty-third street. This objection was sustained by this court on appeal from the order. appointing commissioners (23 App. Div. 518) and the order appealed from was reversed so far as it affected the lands of the association. That decision was made at the December, 1S97, term and on December 31, 1897, before the taking effect of the Greater Hew York charter and upwards of two months in advance of the date set by the resolution of September 10, 1897, for the vesting of title the resolution providing therefor was rescinded by the' board of street opening and improvement. The city .appealed from the order of this court to the,Court of Appeals where by consent the- appeal was dismissed on January 7, 1901. ■

The powers and duties which had been vested.in the board of street opening and improvement were by the Greater Hew York charter (Laws of 1897, chap. 378) devolved upon the board of public improvements. By the revised charter (Laws of 1901, chap. 466) the board of public improvements was abolished, and by section 243 thereof it was provided that the board of estimate and apportionment should exercise such powers and perform such duties as were theretofore vested' in the board of street opening and improvement.

On October 6, 1902, the board of estimate and apportionment, acting under the provisions of section 1000 of the revised charter, under which it was ■ authorized and empowered to discontinue any and all legal proceedings taken for opening, widening, straightening, extending, altering or closing streets or parks, or parts thereof, at any time before title to the lands ■ and premises to be thereby acquired shall have vested in the city of Mew York if in its opinion the public interest required such discontinuance, passed a resolution requesting the corporation counsel to discontinue the proceeding at bar so far as the same affects that portion of Mount Vernon Avenue lying between 233d street and Jerome Avenue.”

The commissioners have proceeded, and in accordance with the decision of this court which eliminated the cemetery lands from the proceeding and the resolution of the board of estimate and apportionment discontinuing the proceeding in regard to all lands south of Two Hundred and Thirty-third street, have taken into consideration only the lands north of that street and so have made no award to the appellant. He claims that-the' board pf estimate and apportionment had no power to discontinue the proceeding in part. He further claims that the original resolution of the board of street opening and improvement of May 15, 1896, providing for the vesting of title to all the land required for the proposed Mt. Vernon avenue for its entire distance from Jerome avenue to the northern boundary of the pity of Mew York, including- the appellant’s land, at a fixed date thereafter to be determined, followed by the resolution of September-10, 1897,' which directed the title to vest on March 7, 1898, so expropriated the land to the public use and fixed the rights of the parties that thereafter the board of street opening and improvement was without power to rescind said resolution providing for the vesting of title and the city was without power to discontinue the proceedings.

If his contention be sound, the result would be that in a proceeding, based upon the doctrine of eminent domain, by which the city is authorized to acquire private property for public use fora public street, the city would be required to pay for an irregular, elongated ■trapezium tapering at one end to twenty-three and thirty-three one-hundredths feet in depth, surrounded upon two sides by the cemetery property, forming a cut de sao utterly useless in the development of the street system of the borough of The Bronx, ‘ and requiring a large payment to be made therefor, not for the benefit of the public, but solely as a gift to the present owner. Such á result would raise a serious constitutional question. The lands taken in this proceeding are to be paid for by assessment upon property. The taking of private property in condemnation proceedings can only be for a public use and the payment for such property by assessment can only be authorized when so taken for a public use. Therefore, to- compel assessment for this property, which the city does not want and cannot use for a public street, would seem unauthorized and open to successful attack as illegal, null and void. - .

The board of street opening and improvement, one of the administrative boards of the city, had the same power' to rescind the resolution fixing the date for the vesting of title that it liad to pass the original resolution providing for the vesting. Inasmuch as said action was taken befóte the date- fixed, ánd in view of the proceedings taken by the Woodlawn Cemetery. Association in objecting to the appointment of commissioners and the action of the court sustaining said objections, it was the duty of the boarfi so to act because it was apparent that if the lands of the cemetery1 -could not be taken for the proposed street that portion of it below Two,.Hundred and Thirty-third street became a physical and legal impossibility. Ho rights had accrued;.no one had been affected; tln^ citj^had no right of entry, and the title was absolutely in the hands of the owner of said property. If the power to discontinue the whole proceeding then existed, it is difficult to perceive how the exercise, of the incidental power of fixing a-date-for vesting of title might not be rescinded. The land was no more expropriated by the resolution of the board -than by any other of the preliminary steps in-the proceedings. From the time of' the passage, of the original street opening act of 1813, these preliminary steps have been held ineffectual for that purpose down to the final confirmation of the-report of the commissioners. . Up to that time thp city had the power to discontinue the proceedings.

In Matter of Commissioners of Washington Park (56 N. Y. 144) Judge Rapallo, writing for an unanimous court, and reviewing many cases, said: A long series of decisions has established that in these street cases the corporation may be permitted to discontinue proceedings at any time before rights resulting therefrom have become vested in the property owners. They further hold — differing in this respect from the English cases'—that no such rights are vested until the report of the commissioners is finally confirmed, and there is a final award in the nature of a judgment in favor of the property owners for their compensation.”

In Matter of Military Parade Ground (60 N. Y. 319) Judge Miller said, speaking for an unanimous court: Under the provisions of the act of 1813 (Chap. 86), which are still in force, in reference to applications for the appointment of commissioners and the estimate of damages in opening or laying out any street or public square, the title to the land does not pass to the city until the confirmation of the report of the commissioners of estimate and assessment. Until this is done the title remains in the owner, with full power to exercise entire control over it, and only subject to the right of the city to acquire title according to law; ” ■ and alluding to Matter of Commissioners of Washington Park (supra), he said: “ The court held that a public body or public officers, to whom the right of eminent domain has been delegated by the Legislature for public purposes exclusively, may be permitted to discontinue proceedings instituted' by them before the title is acquired and the rights resulting therefrom have become vested in the property holder.”

The early cases held that the court had authority to allow discontinuance, even when no provision therefor was made in the Street Opening Act. Subsequently, when power was granted, by section . J of chapter 209 of the Laws, of 1839, at any time previous to the confirmation of the report by the court, to the city authorities to discontinue all proceedings relative to the improvement without the necessity of an application to* the court for leave to do so, that po.wer has been consistently upheld.

Section 1000 of the revised charter, heretofore cited, authorized and empowered the board of estimate and apportionment to “ discontinue any and all legal proceedings taken for opening * * * streets * "x" ^ or parts thereof,, at any time before title to the lands and premises to be thereby acquired shall have vested in The City of Mew York.”

By the rescinding resolution no time was fixed for the vesting of title in the city, and, therefore, such title vested und.er the general provisions of law upon the confirmation by the court of the report of the commissioners. (Revised Charter, § 990.) The board of estimate and apportionment having directed the discontinuance long before the making of any preliminary report, and so of course before the final confirmation of the report of the commissioners, possessed due authority so to act. If it had discontinued the entire proceeding-1 apprehend no question could be raised. The statute expressly provides for the discontinuance of all legal proceedings taken for opening streets or farts thereof ; and, independent of the statute, the power to discontinue the whole must include that of a part. The situation presented upon'this record illustrates how important it is that there should be lodged in the city authorities, who have to deal with the street system of the. great city, power to meet emergencies as they arise.

The appellant’s property remains to him precisely as it was before the commencement of these proceedings. Nothing has been taken from him. No' right to receive what, in effect, would be a gift from the city treasury has become vested in him, and the order appealed from should be. affirmed, with costs.

Ingraham, McLaughlin, Houghton and Scott, JL, concurred.

Order affirmed, with costs. 
      
       See § 436.— [Rep.
     
      
       See R. L. 1813, chap. 86, § 177 (2 R. L. 408) et seq— [Rep.
     