
    In the Matter of the Petition of Thomas F. Gilroy, Commissioner of Public Works of the City of New York, under and in Pursuance of Chapter 490 of the Laws of 1883, and the Laws Amendatory Thereof, on Behalf of the Mayor, Aldermen and Commonalty of the City of New York, for the Appointment of Commissioners of Appraisal under Said Acts. The Town of Cortlandt, Appellant; The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      Mew York city — not bound to maintain a highway built to replace one destroyed — stipulation that the claim be presented to commissioners in condemnation proceedings—discretion of the court on confirmation of the commissioners’ report.
    
    Section 36 of chapter 490 of the Laws of 1883, as amended by chapter 196 of the Laws of 1887, providing as follows: “ The city of New York is hereby required to build and construct'such highways and bridges as maybe made necessary by the construction of any reservoir in the county of Westchester or the county of Putnam under this act, and to repair and forever maintain such additional high-way bridges as may he made necessary by the construction of such reservoir or reservoirs,” does not impose upon the city of New York the duty to maintain a highway built by it to replace one destroyed in the construction of the aqueduct. Where the new highway is longer than the one destroyed, it is erroneous to award to the town in which it is located an annual sum- designed to cover the additional cost of maintaining the increased length of highway.
    The fact that the award was made upon condition that the town discontinue the use of the old highway and accept the new one, and that the town has complied with such condition, does not create a contract between the town and the city obligating the latter to accept the burden imposed upon it by the award.
    A stipulation entered into between the town and the city, by which the city ' agreed that the town’s claim resulting from the destruction of the highway he presented to the commissioners appointed in the proceeding for the condemnation of lands taken for the purposes of the reservoir, and that such commissioners hear the proofs in relation to such claim and make an award therefor, does not effect a common-law submission .of the controversy to the persops composing the commission, and require that the principles'relating to a common-law arbitration be applied to the case.
    Upon the application for the confirmation of the report of the commissioners, the Special Term has power to confirm or refuse to confirm the whole or any part of the report. A motion by the city to confirm the report does not affect its right to object to any-part of it.
    Appeal by The Town of Cortlandt from so mucb of an order of the Supreme Court, made at the Dutchess County Special Term and entered, in the office of the clerk of the county of Westchester on the 4th day of August, 1898, as nullified and set aside the award made in the report of the commission in the above entitled proceedings to the town of Cortlandt, and also from an order entered in said clerk’s office on the 15th day of October, 1898,-denying a motion made by the said town of Cortlandt to resettle the order of confirmation of the report of the said commission.
    
      Frank Manser, for the claimant, appellant.
    
      H. T. Dykman, for the petitioner, respondent.
   Goodrich, P. J.:

In December, 1891, Thomas E. Gilroy, as commissioner of public works of the city of Sew York, in pursuance of chapter 490 of the Laws of 1883, and the laws amendatory thereof,- providing for new reservoirs, dams and aqueducts' for the purpose of providing the city of Mew York with pure water, filed a map for the construction of what is known as the Cornell dam in the town of Cortlandt, county of Westchester. The court thereupon appointed commissioners to ascertain and appraise the amount of compensation to be awarded to the owners of the property affected by the construction of the said dam. The erection of the dam raised the height of water so as to overflow and destroy the use of certain highways owned by the town of Cortlandt. Section 36 of the act, as amended by Laws of 1887, chapter 196, reads as follows: “The city of blew York is hereby required to build and construct such highways and bridges as may be made necessary by the construction of any reservoir in the county of Westchester or the county of Putnam under this act, and to repair and forever maintain such additional highway bridges as may be made necessary by the construction of such reservoir or reservoirs, and in case any bridge or highway thus constructed shall cross any railroad it shall do so above or below the said railroad and not upon the same level as the same.”

The town of Cortlandt commenced an action against the city and applied for an injunction restraining the city from destroying its highways. Before the motion was heard the attorney for the town and the counsel for the city entered into the following stipulation: “ It is hereby stipulated and agreed that the above action be discontinued, and that any claim the town of Cortlandt may have against the city of blew York by reason of the taking of the highways, known as the Croton River road, at or near the blew Cornell Dam, and the building of the highways shown on the map,' entitled "Map of Proposed Road around blew Croton Dam, Cornell site, made by A. Fteley, Chief Engineer,’ and dated January 17, 1895, be presented to the Honorable D. W. Travis and others, Commissioners, appointed under the fifth supplemental petition for the appointment of Commissioners of Appraisal of the Cornell Dam, and that such Commissioners hear the proofs in relation to such claim and make award therefor.”

Testimony was submitted to the commission showing that the length of the old highways destroyed was about two miles, and the length of the new highway constructed by the city was more than three miles. The commissioners made their report determining that $678.35 was a proper sum to be paid to the town “ annually for the taking of said roadway or highway, and in full satisfaction of all damages sustained, or which may be sustained by reason of the acquisition, use or occupation of the said highways for the purposes indicated in said act, and the substitution of the highways already built and above enumerated be substituted in their place and stead.” This award was thus stated, as an annual award, at the suggestion of the Counsel for the city, made before the commissioners, although the counsel for the town requested that a gross sum be ascertained and awarded. Thereafter a motion was made by the city, at Special Term, to confirm the report of the commissioners. The court struck out the award of annual damage on the ground that, while the city was bound to furnish new highways in the place of-those destroyed, yet the future maintenance of such highways rested upon the town and not upon the city. This appeal is taken from such order and. from the order refusing a resettlement.

The report of the commissioners and the order of the court provided that the award should be made upon the condition that prior to any payment under the same, the town, pursuant to law, should discontinue the use of the old highways referred to in the stipulation, and should accept the new highways constructed by the city;' and this the town has done, so that the new highways form part of the highway system of the town.

It seems clear that the award of an annual sum to the town was based upon the theory that it had suffered no other damage than the additional burden of maintaining an increased length of highway. It does not appear that the town owned the bed of the highway, and, hence, it sustained no damage by the'taking of the land for the use of- the city.

Upon this appeal the town contends that the stipulation was a common-law submission to the persons composing the commission, and that the principles which relate to such arbitrations should control, and that such award cannot be set aside. W e cannot assent to this view, as the town submitted its-claims to the “ Commissioners of Appraisal of the Cornell Dam,” and not to the individuals thereof. Our decision must proceed upon the theory that the claim of the town had been brought before the commission in the - same way as other claims under the statute, and that the stipulation did not constitute an arbitration.

The appellant contends also that the language of the statute (§ 15) relating to the report is mandatory, that is, that it requires that the Special Term “ shall confirm such report,” and that the court had no discretion to consider the propriety of the whole or any part of the report, but' was absolutely bound to confirm it. We think this view is clearly erroneous and that the Special Term might confirm the whole or any part of such a report, or might refuse to confirm the .whole or any part of ¡.it. The motion of the city to confirm the report does not destroy its right to object to any part of it, and the objection to the annual award was made at Special Term by the counsel for the city.

This brings us to the consideration of the main question involved in the appeal. The duty of maintaining all the highways in the town of Cortlandt is imposed on the commissioners of highways of that town by the Highway Law (Chap. 568, Laws of 1890). As the town has legally accepted the new highway, it, and not the city, is bound to maintain it, unless this duty is imposed upon the city of Hew York by the act in question. The act compelled the city to build the highway. When the city fulfilled its obligation to construct the highway, and turned it over to the town, its legal • obligation as to maintenance terminated. The Legislature has the power to change the use of public property, like highways, at will, or to discontinue the use of such property, and this was the effect of the act in question. (People v. Kerr, 27 N. Y. 192.) The intention is manifest from an analysis of section 36 already quoted, which requires the city to build and construct necessary highways and bridges, but only requires it to repair and maintain the bridges, and does not require it to maintain the highways. It was the clear intention of the Legislature that the expense of maintaining the ,highways should not devolve upon the city.

The Laws of 1883, chapter 490, section 8, authorize the court to appoint “ commissioners' of appraisal to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate laid down on said maps, as proposed to be taken or affected for the purposes indicated in this act.” Section 24 of the same act, amended by chapter 196 of the Laws of 1887, defines the term “ real estate ” as including “ all real estate * * * heretofore or hereafter acquired or used for railroad, highway or other public purposes, providing-the persons or corporations owning such real estate, or claiming interests therein, shall be allowed the perpetual use, for such purposes, of the same, or of such other real estate to be acquired for the purposes of this act as will afford practicable route or location for such railroad, highway or other public purpose, and in the case of a .railroad commensurate with ’ and adapted to its needs ; and provided, also, that such persons or corporations shall not, directly, or indirectly, ,be .subject to expense, loss or damage, by reason of changing such route or location, but that such expense, loss or damage shall be borne to* the city of New York. In case any real estate so acquired, or used for public purposes, is sought to be taken or affected for the purposes of this act, there shall be designated upon the maps referred to in the fifth and sixth sections thereof, and there shall be described in the petition, hereinbefore referred to, such portion of the other real estate shown on said maps and described in said petition, as it is proposed to substitute in place of the real estate then used for such railroad, highway or other public purposes.”

It is evident that the Legislature intended that where the highway was destroyed another highway should be substituted by the city of New York, and the silence of the act in reference to the subsequent maintenance of the highway clearly evinces an intention that such maintenance should devolve upon the town.

In Matter of Furman Street (17 Wend. 649) it was held (at p. 659) that “ the right to take private property for public use is not conferred by the Constitution. It is a right inseparably connected with the sovereign power of the State, in whatever hands that power may reside; and the Constitution has only regulated its exercise by requiring that just compensation be made to the owner.”

In People v. Kerr (27 N. Y. 188, 192) the court said: “ So far as the’ existing public rights in these streets are concerned, such as the right of passage and travel over them as common highways, a little reflection will show that the Legislature has supreme control over them. When no private interests are involved or invaded, the Legislature may close a highway and relinquish altogether its use by the public, or it may regulate such use or restrict it to peculiar vehicles or to the use of particular motive power. ' It may change one kind of public use into .another, so long as the property-continues to be devoted to public use. What belongs to the public may be controlled and disposed of in any way which the public agents see fit.”

Under these authorities it is clear that the Legislature had the power to provide for the closing of the old and the substitution of the new highway, without imposing upon the city of New York, for whose benefit the dam was constructed, the expense of maintaining the new highway.

We have not lost sight of the argument that inasmuch as the annual award was made to the town upon the condition that it discontinued the use of the old highway and accepted -the new highway, compliance with such conditions' created a contract between the city and the town, and that the city, having accepted the' benefits resulting to it from the discontinuance of the old highway and the use of the land over which it ran, as a part of the water system of the city of New York, must also accept the burdens imposed by the commissioners. Under the decisions already cited this is a matter in the control of the Legislature, which had the power to impose the burden of maintaining the new highway upon the town, with or without any discontinuance of the old highway. It might have imposed the burden upon the city, but it has in plain language evinced the intention not to do so.

It follows that the orders should be affirmed.

All concurred, Bartlett, J., in result.

Orders affirmed, with ten dollars costs and disbursements.  