
    IN THE MATTER OF THE PETITION OF ROSWELL D. HATCH.
    
      Decided November 5, 1877.
    I. Grades of streets, changing of.
    
    1. Awards for, title thereto disputed.
    (a) JURISDICTION OF SUPERIOR COURT AS TO.
    1. The court, under chapter 53 of the laws of 1853, has no jurisdietion upon petition, to determine a disputed title, and direct payment to one of the claimants.
    1. Such determination can only be by due process of law, at least in this court.
    3. The authority given by the phrase “to be secured, disposed, of, and improved as the superior court shall direct,” is simply a supervisory one over the chamberlain, with respect to his custody, care, management, and invest- „ ment of the fund while it is in his hands, and does not authorize its withdrawal from him.
    H. Definitions.
    
    1. Due process of law.
    It means a suit instituted and conducted in accordance with the prescribed course of procedure, for determining the title to-property.
    Before Sedgwick and Sanford, JJ.
    The petitioner claims that he is entitled to receive an award for damages to certain premises, made by the assessors on changing the grade of Manhattan street. The award is $1,560, and the petitioner claims it upon the ground that he was the owner of the premises damaged at the time of the injury.
    One John J. Bowes claims to be entitled to the award as the owner of the premises when the change of grade was completed.
    The mayor, aldermen, and commonalty claim to be entitled to $1,223.61 of the award of $1,560, being the assessment on the premises for the expenses of the improvement in question.
    The petitioner procured an order directing the comptroller to pay the award to the city chamberlain, and a reference to take proofs, to the end that the court determine the title of the claimants and of the petitioner and direct the payment of the award to the party entitled to receive it.
    The petitioner based his application for this remedy upon a provision in chap. 52, § 4, Laws of 1852, providing that where the title to the award is disputed it shall be lawful for the city to pay the same to the “chamberlain of the city of 3STew York to be secured, disposed of and improved as the superior court shall direct, and such payment shall be as valid and effectual in all respects as if made to the said owners, parties, &c.” The act further provides that notice of such payment to the chamberlain shall be forthwith given to the superior court. This provision in the act of 1852 is referred to and confirmed. See Laws 1867, p. 1750.
    The referee reported in favor of the city for the amount of its claim, and that the remainder of the award after satisfying the claim of the city be paid to the claimant John J. Bowes.
    Thereupon said Bowes moved, on notice to the petitioner and the Mayor, &c., for a confirmation of the report.
    The court at special term dismissed the application for want of jurisdiction.
    
      The opinion delivered at special term was as follows :
    Curtis, J. J. It has not been shown to me satisfactorily that this court has the power to order the payment of this award and grant this summary species of relief as sought for in this proceeding. During the interval of more than twenty-five years since the passage of the act, it is not shown to have ever in a single instance attempted to exercise such power. The constitution provides that no person shall be deprived of property without due process of law'. Private property cannot be taken from one person and delivered to another person or applied to the private use of another, except by a suit instituted and conducted in accordance with the prescribed course of procedure for determining the title to property. The institution and conduct of such a suit is what is meant by “ due process of law.” The title to the property in question, this award of $1,560, is sought to be determined by a proceeding unknown to the common law. A conflicting claimant, and possibly the rightful owner of this sum, thus held, is liable to bp deprived of it without the advantage of a suit or proceeding where his rights can be passed upon by a jury or asserted on appeal.
    Moreover, it is not shown that this mode of practice by petition and order is, as far as this court is concerned, authorized by the legislature (Taylor v. Porter, Hill, 147; In re Dodd, 27 N. Y. 632).
    The case here is different from what it may be in the supreme court, which is clothed with the jurisdiction of proceedings for opening and improving streets.
    Where the parties and the proceedings are before that court, and these questions arise in applications in their nature interlocutory and in respect to which there is no question of jurisdiction, this mode of remedy may exist.
    But this court, a stranger to this species of jurisdiction, cannot properly undertake to determine questions of title to property between private parties, except in accordance with such process of law as is known to the administration of justice, and which preserves to suitors the authorized and constitntional modes of asserting and protecting their rights.
    The application to the court, in this matter, must be dismissed for want of jurisdiction.
    Thereupon an order was made dismissing the petition.
    From this order said Bowes appealed.
    
      William Marsh, attorney, and John D. MacGregor, of counsel, for appellant, urged :
    —I. The statute (Laws of 1852, chap. 52, § 4) which authorizes the award, directs that when the title to it is “ disputed, it shall be lawful for the mayor, aldermen, and commonalty of the city of New York to pay ‘the money ’ to the chamberlain ... to be secured, disposed of, and improved as the superior court shall direct.” This language is clear and positive, free from obscurity or ambiguity, and being the language of the legislature, is ample to confer the jurisdiction asked for in this case. 1. It is not obnoxious to the constitutional inhibition that it deprives any one of property, without due process of law. The award is not ‘ ‘ property ’ ’ in the constitutional sense ; it is a mere gratuity returned by the State for the exercise of its right of eminent domain, and there are no precedents in the common law applicable to it. The same statute which gives the gratuity has a right to prescribe the modes of its payment. The case is analogous to a pension or bounty, granted by the government, which is governed by the act itself, and does not come within the ordinary laws of descent or distribution. It might as well be contended that the act is unconstitutional in respect to the assessments, because it deprives the party assessed of his property without trial by jury. The constitutional provision has never been extended beyond rights which were known to the common law. 2. If any inference is to be derived from the fact that the provision was enacted twenty-five years ago, and that no attempt has ever been made to enforce it, it is quite as logical to say that during that period, in the repeated compilations of the laws relative to the city of Mew York, by the common council, by Judge Davis, Judge Hoffman, and others, this important provision has never before been questioned. The order should therefore be reversed, and the special term directed to hear the motion to confirm the report on the merits.
    II. If, however, this court had no authority to determine the title to the award, it had jurisdiction to direct how it should be “ secured and improved.” This is authority enough to enable the court to award costs against the petitioner when he has asked for relief which is refused. The petitioner Hatch comes voluntarily into court and brings the other parties here. He has submitted himself to its jurisdiction on him, so far as that jurisdiction may extend. This court certainly had some authority in this proceeding. It is a court of general jurisdiction in law and equity, and possesses the power to make a complete disposition of whatever proceeding is brought before it. This power embraces the right to impose costs upon the dismissal of a proceeding for want of jurisdiction against the party who has unwarrantably instituted it. ‘ On dismissal of an action for want of jurisdiction to hear and determine it on its merits, the defendant is entitled to a judgment against the plaintiff for costs” (McMahon v. Mutual Ben. Life Ins. Co., 3 Bosw. 644, approved; Kings v. Poole, 35 Barb. 248; Brocket v. Bush, 18 Abb. Pr. 337). The order should be amended by allowing the respondent his costs.
    
      
      James A. Beering, attorney, and of counsel, for respondent, Hatch.
    
      Wm. O. Whitney, corporation counsel, and Arthur Berry, of counsel, for The Mayor, &c.
   By the Court.—Sanford, J.

—If the provision of chapter 52, section 4, of the Laws of 1852, which ■ authorizes the payment by the corporation, to the chamberlain of the city of Hew York, of an award to unknown owners, “to be secured, disposed of and improved as the superior court shall direct,” can be construed as conferring jurisdiction upon this court, to determine the rights of adverse claimants to such award, and to direct the payment thereof to snch party as shall be adjudged entitled thereto, the statute-referred to is silent as to the mode in which such jurisdiction shall be exercised ; and we are not aware of any principle, authority, or precedent, upon which a proceeding for obtaining such an adjudication can be-summarily instituted by petition, or otherwise than, in the ordinary course of practice, by civil action. The objections to such a summary exercise of jurisdiction are sufficiently indicated in the opinion which accompanied the order appealed from. But it will be-observed that the words “ disposed of,” as employed in the statute, and under which alone it can be insisted that the statute confers authority to direct payment to a claimant, are so connected with the words, “to be secured” and “improved,” as to leave little doubt that the legislature intended to confine the action of this court under the statute, to such disposition of the money, as, in its discretion, may be proper, only so-long as the same remains in the hands of the chamberlain. If the disjunctive “or,” had been used instead of the copulative “and,” there would be some ground for supposing that the disposition of the fund intended might be deemed to include its withdrawal and payment ; but when the authority conferred is in terms confined to a direction as to the securing, disposing of, and improving the fund, the maxim, noscitur a sociis, seems applicable, and we must, therefore, construe the language as importing only a supervisory authority over the chamberlain, with respect to his custody, care, management and investment of the fund, and not as authorizing its withdrawal from his hands.

On this ground, as well as on those suggested in the opinion of the learned chief justice, we think the court should decline to adjudicate upon the rights of claimants, in any such summary manner as is contemplated in this proceeding, and that the order appealed from should, accordingly, be affirmed.

Sedgwick, J., concurred.  