
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title, etc., for the Purpose of Opening Remsen Avenue from Utica Avenue to Canarsie Bay Park in the Twenty-ninth and Thirty-second Wards, Borough of Brooklyn, City of New York. Greater New York Development Company and Others, Respondents.
    (Appeal No. 1.)
    Second Department,
    November 22, 1912.
    Municipal corporation — street opening proceeding under Greater New ■ York charter — statute — effect of subsequent enactment of special act governing same proceeding — subsequent repeal of special act.
    Where after proceedings were instituted and commissioners appointed, pursuant to the Greater New York charter, for the opening of a' portion of a certain avenue in the borough of Brooklyn, a special act was passed specifically providing for the same .improvement, the latter act must be deemed to supersede the general law, notwithstanding the provisions of section- 31 of the Statutory Construction Law then in force, and the report of the commissioners appointed under the provisions of the charter should not be affirmed.
    The fact that the special act was subsequently repealed does not change the situation or the legal effect of the proceedings.
    Appeal by the petitioner, The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings.on the 18th day of March, 1910, denying the petitioner’s motion for the confirmation of the report of the commissioners of estimate and assessment in the above proceeding.
    
      Edward Riegelmann [Howard L. Campion and Archibald B. Watson with him on the brief], for the appellant.
    
      Ferdinand Pecora, for the respondents Elwood Realty Company and others, but appearing with the appellant for a reversal of the order.
    
      Benjamin Trapnell [ Joseph A. Flannery with him on the brief], for the respondents Greater New York Development Company and others.
    
      
      Charles S. Taber, for the respondents Curtin and others.
    
      Hugo Hirsh [Herbert G. Andrews of counsel], for the respondents Henderson and others.
   Hirschberg, J.:

The order under review denies a motion duly made to confirm a report of commissioners of estimate and assessment duly appointed for the opening of a portion of Remsen avenue in the borough of Brooklyn. It is undisputed that the appointment of the commissioners was made and that their proceeding was instituted and carried on pursuant to the provisions of the Greater New York charter in effect at the time the proceeding was commenced. (Laws of 1897, chap. 378, §§ 970 et seq.) The proceeding was instituted on the 17th day of May, 1899, the board of public improvements of the city having adopted a resolution on that day, requesting the corporation counsel to institute the necessary legal proceedings to enable the city to acquire title to the lands required for the opening of the portion of Remsen avenue in question, such resolution being made pursuant to a petition of certain of the -property owners interested. Pursuant to the resolution, commissioners of estimate and assessment were duly appointed by order of the Supreme Court on the 19th day of February, 1900. The commissioners duly organized, as required by law, on the twenty-sixth day of February following. By the terms of the resolution and in accordance with the provisions of the charter the entire cost and expense of the proceedings were to be assessed upon the owners of the property deemed to be benefited by the improvement.

No proceedings subsequent to the organization of the commissioners appear to have been taken by them until the 23d day of February, 1905, when the first publication was made by them' of a notice of their appointment, requiring parties interested in the proceeding to file, their claims, and designating a time and place when and where hearings were to be had in reference thereto. The report of ’ the commissioners was made on the 20th day of April, 1909, and the said report was duly presented to the Special Term, for confirmation on the 95th day of May, 1909.

On the 4th day of May, 1900, chapter 165 of the Laws of 1900 became a law, being an act providing for the opening, laying out and improving of Remsen avenue in the borough of Brooklyn. It seems to be undisputed that that act specifically provided for the same improvement which was the object of the appointment of the commissioners heretofore referred to, who had been appointed under the general provisions of the charter, as stated. The special act provided in substance that the board of public improvements of the city of New York should lay out, open and improve the portion of Remsen avenue referred to, as a public street, upon the petition of the local board having jurisdiction under the charter; that the proceedings to acquire the title to the lands required for the improvement should be taken as prescribed in the Greater New York charter, but that the cost and expense of the proceedings should be levied and assessed, one-third upon the owners of the property deemed benefited thereby and the remaining two-thirds upon the city. . By section 10 of the special act it was provided that . All acts and parts of acts inconsistent with this act are hereby repealed.”

The contention on the part of the appellant is that the special act did not impair the proceedings instituted by virtue of the provisions of the charter, ancl that such proceedings could be prosecuted to a final determination, the same as though the special act had not been passed. In this contention reliance is placed on the terms of section 31 of the Statutory Construction Law (Gen. Laws, chap. 1; Laws of 1892, chap. 611) in effect at the time of the enactment of the special act. So far as appropriate, section 31 of the Statutory Construction Law then in force reads as follows: The repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected; and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same maimer as they might if such provisions were not so repealed.”

I do not think the contention of the appellant is sound. That provision can have no controlling force upon a special act duly and regularly adopted by the Legislature, providing in express terms a definite scheme for the opening of a particular street in the city. Otherwise the effect would be to render the act of the Legislature nugatory and abortive. It may well be that the final act would not interfere with rights which were vested at the time of its passage, but the power of the Legislature to provide a distinct and definite scheme for the opening of the street could not be destroyed or taken away by any possible scheme of mere statutory construction. The special act must be deemed to.supersede the general law, and for the purpose of such act the Statutory Construction Law must be deemed to be repealed, as well as the general provisions of the city charter.

The general rule that later special statutes predominate over prior general statutes was asserted by the Court of Appeals in Matter of Murray Hill Bank (153 N. Y. 199), Judge Vann writing for the unanimous court (p. 210): “Thusit appears that the special proceeding, commenced by the directors to dissolve the bank, was based upon a general act passed in 1880, applying to substantially all corporations, while the action commenced by the attorney-general, although regulated by the Code, was based upon a special act, applying to banking and kindred corporations only, passed in 1892. (L. 1880, ch. 178; L. 1892, ch. 689.) The precise question presented for decision is whether the action, although begun after the special proceeding, took priority thereto owing to the possession taken by the bank superintendent of ‘the property and business ’ of the bank, with authority to retain possession thereof until the termination of the action brought by the attorney-general in the name of the People.

"“So far as the special and later statute is necessarily inconsistent with the general and earlier statute, the provisions of the former are paramount. (Townsend v. Little, 109 U. S. 504; Titcomb v. Union, &c., Ins. Co., 8 Mass. 325; Isham v. Bennington Iron Co., 19 Vt. 230; Crane v. Reeder, 22 Mich. 332; The State ex rel. Fosdick v. Perrysburg, 14 Ohio St. 472; London, C. & D. R. Co. v. Wandsworth Board of Works, L. R. [8 C. P.] 185; Dwarris on Statutes, 513, 668.)

“In order to avoid a repeal by implication, which is not favored by the courts, the later act, or the particular provision is regarded as an exception to the earlier statute or the general provision. Thus, a learned author says, that the later statute ‘is regarded as modifying the earlier in some particular respect, or taking certain things out. of its operation.’ (Endlich’s Interpretation of Statutes, § 215.) ‘If there are two acts,’ he continues, ‘ or two provisions in the same act, of which one is special and particular and clearly includes the matter in controversy, whilst the other is general and would, if standing alone, include it also, and if, reading the general provision side by side with the particular one, the inclusion of that matter in the former would produce a- conflict between it and the special provision — it must be taken that the latter was designed as an exception to the general provision, as where an incorporation law contains provisions regulating the bringing of actions against corporations created under it, at variance with earlier provisions upon the subject of suits against' corporations generally.’ (Id. § 216.) ”

In connection with the appeal herein an appeal was argued at the same time from.an order in the same proceeding, which denied a motion for the vacation of the order refusing to confirm the report and for a reargument of that motion. (Matter of City of New York [Remsen Ave.], No. 153 App. Div. 916.) It appears from the papers presented on that appeal that on two occasions after the passage of the special act, in the summer of 1900, and in the fall of 1902, the proper local board having jurisdiction duly petitioned the board of public improvements of the city to lay out and improve Remsen avenue in accordance with the provisions of the special act, but that the board of public improvements took no steps in response to such petitions. The motion for a reargument was based upon the fact that by chapter 847 of the Laws of 1911 the special act hereinbefore referred to was duly repealed. I do not think that repeal changes the situation or the legal effect of the proceedings. By section 90 of the General Construction Law now in force (Consol. Laws, chap. 22; Laws of 1909, chap. 27), it is provided that “The repeal hereafter or by this chapter of any provision of a statute, which repeals any provision of a prior statute, does not revive such prior provision.”

The order should be affirmed.

Burr, Woodward and Rich, JJ., concurred; Thomas, J., not voting.

Order affirmed, with ten dollars costs and disbursements.  