
    In the Matter of the Board of Street Opening. In the Matter of Audubon Avenue. New York Institution for the Blind, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 11, 1895.)
    Statutes — Repeal.
    Section 4, chap. 565 of 1865, which relates to laying out streets north of the one hundred and fifty-fifth street, was repealed by the consolidation act.
    Appeal from an order, confirming the report of the commissioners of estimate and apportionment.
    
      James A. Deering, for app’lt; Francis M. Scott, for resp’t.
   Parker, J.

The question presented on this appeal is whether section 4 of chapter 565 of the Laws of 1865 is still in force. If it is, the commissioners of estimate and apportionment erred in assessing the total expense of acquiring title to Audubon avenue upon the property benefited, for that section provides that, when a street shall be laid out north of the southerly line of 155th street, if the street be more than a mile in length, not more than one-half of the expense shall be assessed on property owners. Aududon avenue is more than a mile in length. The consolidation act (chapter 410, Laws 1882) contains many of the provisions of chapter 565 of the Laws of 1865, and it is conceded that such provisions of the latter act as were in substance incorporated into the consolidation act superseded and operated to repeal such of the provisions of the act of 1865 as relate to the same subject. But, as the act of 1865 was not expressly repealed, it is contended that section 1008 of the consolidation act kept in force such of the provisions of the fomer act as were neither in direct conflict with, nor in substance like, provisions of the. consolidation act. Section 1008 reads as follows:

“Nothing contained in this title shall be construed as affecting any provision of special acts relating to particular districts or portians of the city, so far as such provisions are inconsistent with the provisions of this title.”

It is conceded, but for this section, the decision In re New York Institution for Instruction of the Deaf and Dumb, 121 N. Y. 234; 30 St. Rep. 921, would require the court to hold that the section in question, as well as the entire act of 1865, is no longer in force. The argument, however, in that case as well as In re Wheelock, 21 St. Rep. 369, seems to us to call for a determination that section 4 is no longer operative. In the first case the court, speaking of the consolidation act, and how it should be construed, said:

“It was the manifest intention of the legislature that it should take the place of the numerous special and local acts applicable to the city of Mew York, which had been enacted for more than a century, and to rescue them from the obscurity, uncertainty, and difficulty caused by their scattered condition, and that intention should have effect.”

Granting that such was the object of the enactmant, nevertheless urges the appellant, a failure to repeal in terms the act of 1865, considered in connection with the saving clause contained in section 1008, should satisfy the court that section 4 of the act of 1865 was intentionally reserved from the operations of the consolidation act; and appellant insists that the course of legislation on that general subject constitutes a forceful argument in favor of its position. But it does not so impress us. By chapter 536 of the laws of 1879, commissioners were appointed to compile and revise all special or local laws affecting local interests in the city of Mew York, and to report at the succeeding legislature. Their report, containing nearly 2,200 pages, and entitled, “A compilation,” was declared to contain presumptively all special and local laws affecting public interests in the city of Mew York, and included in it was chapter 565 of the laws of 1865. By chapter 594 of the laws of 1880, passed subsequently to the submission of the compilation to the legislature, the same persons were constituted commissioners to revise all the special or local laws affecting public interests in the city of Mew York which shall be in force at the time such commissioners shall make their final report, or at such time prior thereto as such commissioners shall deem advisable. The statute further directed that the commissioners should not make any change in the meaning of existing laws, but seek to simplify and mold into consistent acts all existing statutes upon matters embraced in such special or local laws. Thereupon they prepared what is known as the “Consolidation Act,” which was presented to the legislature, where it passed, and became chapter 410 of the laws of 1882. At the same time the commissioners submitted an act expressly repealing a number of acts which they deemed to be repealed or covered by the consolidation act, which did not include the act of 1865. The commissioners’ reasons for this ma3r be found in their note to chapter 13 of their final report, in which it is stated that “chapter 565 of the laws of 1865, Comp. 998, superceded by laws 1871, chap. 534, and laws 1874, chap. 604.” It is apparent that the act of 1865 was not overlooked by the commissioners, for it not only appeared in the first compilation, but in their further report, submitting the consolidation act, it was asserted to be their understanding that it was superceded by the statutes to which they referred. It is evident, therefore, that the commissioners did not intend that section 1008 should operate to continue in force section 4 of that act.

The title of the act of 1874 was substantially like that of 1865, and many of its provisions were of the same general character, although the act of 1874 conferred exclusive power upon the department of public parks to lay out all streets north of 155th street, while under the act of 1865 that power was vested in the commissioners of the Central Park. In Re New York Institution for Instruction of the Deaf and Dumb, supra, the court held that section 8 of the act of 1865 was not repealed or superseded by the act of 1874, because the latter act was in no wise inconsistent with that section, nor did it relate to the subject embraced therein, to wit, the improvement of streets opened. The court then considered the question whether it was repealed or superseded by the consolidation act. It observed that the provisions of section 8 of .the act of 1865 were not embraced therein, but that other provisions of the act of 1865, so far as they were re-enacted in the act of 1874, were. As section 8 was omitted from the act, which, however, did contain certain general provisions for regulating, grading, and improving streets, “ we have not, therefore (said the court), a case where some prior statute has been wholly omitted, and no provision of any kind substituted in its place. But this case is a case where the prior provision of law has been entirely dropped, and provisions upon the same general subject are found in the new act.” And the conclusion was reached that the effect of the consolidation act was to repeal section 8 of the act óf 1865. It seems to us that the argument of the court, upon which it based its determination that section 8 of the act. of 1865 was superseded by the consolidation act, is clearly applicable to section 4 of -that act. Section 4 of the act of 1874, which the commissioners assumed had superseded the act of 1865, contained substantially the same provisions as to assessments for benefit as section 4 of the latter act, with reference to that part of the city north of 155th street, except that it limited its operations to the twenty-third and twenty-fourth wards ; and the provisions of section 4 of the act of 1874 were re-enacted in section 677- of the consolidation act, in the chapter relating to the department of public parks, and also in section 958, under the chapter relating to street openings. And upon the question of intent it is worthy of note that no part of the act of 1865, except so far as re-enacted by chapter 604 of the laws of 1874, was incorporated in the consolidation act, and yet we have before us the evidence that the act was brought to the attention oí the commissioners, for it was quoted entirely in their first compilation, and referred to in a note in their revision, as superceded by the act of 1874. The decision of the special term seems to us in line with the construction adopted in Re Wheelock and Re New York Institution for Instruction of the Deaf and Dumb, supra, and justified by the provision of the several statutes to which we have referred, considered in connection with the history of their enactment. The order should be affirmed, with $10 costs and printing disbursements.

All concur.  