
    Mitchell v. Village of White Plains.
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    Eminent Domain—Necessity of Compensation.
    The provision of Laws 1868, c. 553, that the damages awarded for lands taken for laying out and improving Mamaroneck avenue shall be paid by “assessing the amount thereof upon the strip of land lying^within five hundred yards of either side of said avenue, ” makes the compensation contingent on the realization of funds from a limited assessment district, and is therefore void, as in contravention of the provision of the state constitution (article 1, § 6) that private property shall not be taken for public use without just compensation.
    Appeal from special term, Westchester county.
    Action by Isabella H. Mitchell to restrain the Village of White Plains from laying sewer-pipes through a strip of land claimed to be the property of plaintiff. From a judgment for defendant rendered by the court on a trial without a jury, plaintiff appeals.
    Reversed.
    Argued before Pratt, Cullen, and Bartlett, JJ.
    
      M. M. Silliman, for appellant. H. T. Dykman, for respondent.
   Pratt, J.

That the award was made to the husband of the plaintiff, instead of to the plain tiff, would not invalidate the proceedings to open tie highway in dispute in this case. The plaintiff would be entitled to the award despite the fact the owner was erroneously named in the report of the commissioners of estimate and appraisal, nor would the fact that she has not received the award be fatal, provided that, under the statute authorizing this improvement, there was an adequate remedy given her to enforce the payment of the award had she proceeded in time. This highway was authorized to be laid out by chapter 552, Laws 1868. The commissioners named in the act are given the same powers as those vested in a prior act for the laying out of another highway in Westchester county, (chapter 408, Laws 1865,) “except that the damages awarded for the taking the land necessary for laying out, making, grading, and regulating said Mamaroneck avenue shall be paid by assessing the amount thereof upon the strip of land lying within five hundred yards of either side of said avenue.” The highway extends through several towns. By the act the money necessary to grade and improve the avenue was to proceed from the issue of bonds by such towns. The act of 1865 directed the commission constituted by that act to pay the awards, and such commission doubtless could have used any funds for- that purpose. But by the exception quoted, the commissioners under this act are deprived of such power, and limited to paying awards from one single source; that is, the local assessment. The act, therefore, seems to fall expressly within the principle laid down in Sage v. City of Brooklyn, 89 N. Y. 189: “A remedy for compensation contingent upon the realization of funds from taxation for benefit within a limited assessment district does not meet the constitutional requirement.” It follows that the act of 1868, so far as its provision for compensation for lands taken for the improvement is limited to the local assessment, is unconstitutional and void. The judgment appealed from should be reversed, and a new trial ordered, costs to abide event. All concur.  