
    In the Matter of Albert Fam, Appellant, v. Frank Shapiro et al., Respondents.
    Argued January 11, 1965;
    decided February 11, 1965.
    
      
      Leo F. McGinity for appellant.
    I. The decision of the commissioners was fair and just and based on substantial evidence. It has been confirmed by the County Court after careful examination of the record, the exhibits and the applicable law and is "final" in the absence of a finding of lack of jurisdiction. The appellate court erred in reversing on the record presented, (City of Utica v. Damiano, 22 Misc 2d 804.) II. The provision of the Highway Law (§ 179) that on a motion to confirm the decision of the County Court “ shall be final ’’makes the decision and order conclusive upon the questions of the necessity of the proposed highway and the compensation of the landowners, provided the County Court had jurisdiction to make such order. It was error for the Appellate Division, Second Department, to review and reverse the County Court on the facts and to assume jurisdiction which the statute does not give in making new findings of fact and reversing the findings of the commissioners and the County Court. The question of necessity was finally determined when the decision of the commissioners was confirmed by the Comity Court: (Matter of De Camp, 151 N. Y. 557; Crouch v. Gutmann, 134 N. Y. 45; Matter of Southern Blvd. R. R. Co., 143 N. Y. 253; Matter of Burdick, 27 Misc. 298; Matter of Town of Whitestown, 24 Misc. 150; City of Utica v. Damiano, 22 Misc 2d 804; Matter of New York, W. S. & B. Ry. Co., 37 Hun 317; 
      Matter of Carpenter, 11 Misc. 690.) III. The Town of Hemp-stead has no right to appeal. The public and not the applicant are substantially parties to the proceeding. The town, as representative of the public, was successful on the application. The appellate court committed error in entertaining the appeal of the town and assessing costs in its favor against the applicant, Fam, who was merely the instrument to set the statute in motion and guaranteed by section 178 that he would not be subject to costs of more than $100 if unsuccessful. The application was successful, and the Appellate Division has assessed costs against him amounting to $1,767.48. (People v. Wheeler, 21 N. Y. 82; Adirondack Power & Light Corp. v. Evans, 226 App. Div. 490; McMahon v. Rauhr, 47 N. Y. 67.)
    
      Philip T. Feiring for Frank Shapiro and others, respondents.
    I. The proposed condemnation is barred by the Federal and State Constitutions in that the taking of private property is not necessary for public use and is being sought for use of a private individual. (People v. Fisher, 190 N. Y. 468; Matter of New York Cent. & H. R. R. R. Co., 77 N. Y. 248; Ontario Knitting Co. v. State of New York, 147 App. Div. 316, 205 N. Y. 409; City of Rome v. Whitestone Water Works Co., 113 App. Div. 547, 187 N. Y. 542; Missouri Pacific Ry. v. Nebraska, 164 U. S. 403; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112; Hairston v. Danville & Western Ry., 208 U. S. 598.) II. The Appellate Division was correct in finding that the condemnation was “neither necessary nor for a public purpose ”. (People v. Van Alstyne, 3 Keyes 35; People ex rel. Ashley v. Commissioners of Highways, 42 Hun 463; Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333; Matter of De Camp, 151 N. Y. 557; City of Utica v. Damiano, 22 Misc 2d 804.) III. The proposed condemnation is barred in any event by section 180 of the Highway Law. IV. The objectants were properly allowed costs as set forth in the judgment.
    
      John A. Morhous, Town Attorney (George B. Schneider of counse]), for Town of Hempstead, respondent.
    I. The written decision of the condemnation commissioners is completely devoid of supporting findings of fact. (Town of Pittsford v. Sweeney, 34 Misc 2d 436; Drake v. Rogers, 3 Hill 604.) II. Since actually a private road is sought herein, both the condemnation commissioners and the County Court lacked jurisdiction to sustain their respective determinations. (People ex rel. Williams v. Kingman, 24 N. Y. 559; Matter of De Camp, 151 N. Y. 557; Matter of Laidlaw, 162 App. Div. 755, 213 N. Y. 653.) III. Appellant never obtained a certificate of public interest from the Town ¡Superintendent of Highways. IV. If the decision and judgment of the Appellate Division are reversed and the findings of the condemnation commissioners sustained, appellant would successfully circumvent the provisions of section 280-a of the Town Law. V. The Town of Hempstead had a duty to take an appeal from the order of the County Court which confirmed the decision of the condemnation commissioners. VI. Private property can be taken only for a public and not a private use under eminent domain. (Matter of Tuthill, 163 N. Y. 133; Matter of Split Rock Cable Road Co., 128 N. Y. 408; Matter of Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375; Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333; Matter of Mayor of City of N. Y., 135 N. Y. 253; Matter of Eureka Basin Warehouse & Mfg. Co. of Long Is., 96 N. Y. 42; Saso v. State of New York, 20 Misc 2d 826; Taylor v. Porter, 4 Hill 140; Embury v. Conner, 3 N. Y. 511; People ex rel. Delaware, L. & W. R. R. Co. v. County Court of Onondaga County, 152 N. Y. 214.)
   Scileppi, J.

Petitioner, the owner of two parcels of land designated as Lots 81 and 99 on the Tax Map of Nassau County, has access to and from his property on the east side thereof by means of a corridor 21 feet in width, which abuts on Verity Lane. That he can utilize and service every square foot of his property by this corridor is undisputed. In addition, he has access from the Adams Street cul-de-sac to his property by means of a 16-foot easement established pursuant to a judgment of the Supremo Court.

The instant proceeding was brought pursuant to section 173 of the Highway Law for the purpose of establishing a cul-de-sac upon a cul-de-sac in that petitioner sought the creation of Pam Court (terminating in a cul-de-sac) as an extension of Adams Street. The establishment of this court would necessitate the condemnation of several small, triangular-shaped parcels, owned by the individual respondents herein, which abut on the existing cul-de-sac (Adams Street). Pursuant to section 174 of the Highway Law, three commissioners were appointed by the County Court. ¡Since no allegation is made that the commissioners did not follow the directions of section 174 of the Highway Law, we assume that the requirements of that section were met, including the personal examination of the location of the proposed highway. The commissioners unanimously determined : “ in our opinion, it is necessary and proper that the said highway be laid out and opened pursuant to said application of Albert Fam ”, In addition, as required by statute, the commissioners assessed damages. The County Court confirmed the determination of the commisisoners, using the following language: ‘ ‘ The court cannot vacate the decision of the commissioners except for a manifest error of law (Matter of Burdick, 27 Misc. 298; Matter of Town of Whitestone [sic], 24 Misc. 150). The commissioners have found that the taking will be for a public use and the facts before them do not, as a matter of law, require another finding (City of Utica v. Damiano, 22 Misc. 2d [sic] 804.” The Appellate Division reversed the County Court on the law and on the facts. The order also contained the following language:

Further Ordered that the findings of fact contained or implicit in the decisions at Special Term which may be inconsistent herewith, are hereby reversed, and it is
“ Further Ordered that new findings are made as are indicated in the opinion and decision slip of this court ’

In its opinion, the Appellate Division stated: Under all the circumstances, the proposed talcing is, in our opinion, neither necessary nor for a public purpose ”.

The petitioner urges that the Appellate Division, under section 179 of the Highway Law, lacked the jurisdiction to make the above finding. We agree with his contention.

In pertinent part the said statute provides as follows: ‘ ‘ and the decision of the county court shall he final, excepting that a new hearing may be ordered as herein provided, and excepting that any such decision may be reviewed on appeal upon questions affecting jurisdiction, and rulings and exceptions made and taken upon the hearing before the condemnation commissioners.” (Highway Law, § 179; emphasis supplied.)

In Matter of De Camp (151 N. Y. 557) we said (p. 563): “ The order of the County Court is ‘ final ’ within its proper scope and purpose. It determines, finally, the question of the necessity of the proposed highway. It concludes the landowner as to the amount of damages when the order confirms the award of the commissioners. It is final as to both these questions, and errors of law or fact in the course of the proceedings, unless jurisdictional, do not affect the conclusiveness of the decision of the County Court.”

From the -above it is manifest that the Appellate Division has not been granted the jurisdiction to inquire -into the factual questions of necessity ” and “ damages ”, even if the findings are not supported by any evidence. If such were the case, the error would be one of law, and, although erroneous, the County Court determination of the questions is nevertheless final (Matter of De Camp, 151 N. Y. 557, supra). In the case at bar the Appellate Division found that the highway was neither necessary nor for a public purpose. Clearly, under De Camp, the pronouncement as to necessity” was beyond the power of that court. With respect to the second element of the finding, the respondents urge that the question of whether the highway is for a public purpose is a jurisdictional fact which may -be reviewed by the Appellate Division. They urge that the petitioner has proceeded as though he sought a public highway, when, in fact, he sought a private road. The crucial difference in approach is that an applicant seeking condemnation for a public highway must do so under section 170 et seq. of the Highway Law which provide for a determination of necessity and damages by the commissioners with confirmation by the County Court; whereas in seeking a private road proceedings must be had under section 300 et seq. of the Highway Law which provide for a jury determination on the issues of necessity and damages (Highway Law, § 301). Clearly, if the proposed Fam Court is considered a private road, then the commissioners have no power (jurisdiction) to act on the matter.

The first question of fact which the commissioners must determine in proceedings of this nature is whether there is a necessity for establishing the highway as a public highway, i.e., the finding that necessity exists necessarily implies that it is a public necessity (Matter of Burdick, 27 Misc. 298, 300). In the case at bar the commissioners determined, upon -the evidence presented, as well as on a personal inspection of the premises, that a public necessity did indeed exist. The County Court then confirmed this finding. In determining that a public necessity for the highway existed, the commissioners had to find that the proposed highway would meet the legal test for a public highway, viz., whether the public at large was to have a general right to use it for travel (Matter of Town of Whitestown, 24 Misc. 150, 153; see, also, People v. County of Westchester, 282 N. Y. 224, 228). In the former case it was noted that, even if the roads are infrequently used and are mainly convenient for the use of a few individuals, the highway will nevertheless be characterized as ‘ ‘ public ” if it is open to everyone who may have reason to use it (p. 153). Once the County Court confirms the findings of the commissioners, the Appellate Division is in 'a position analogous to that of this court when we are called upon to review factual findings. In other words, the sole question before the Appellate Division is whether the determination of the County Court that the proposed highway is a public highway is supported by the evidence. If the answer is in the affirmative, then that court may not disturb the finding. In the case before us: (1) the commissioners actually viewed the premises; (2) a proposed map of “ Fam Woods”, a housing development planned by the applicant, was submitted in evidence; and (3) there was testimony that a 40- or 50-foot wide access is required by the Nassau County Planning Commission before one may develop his property. On the basis of the above, the Appellate Division must take as conclusively found that: (1) the petitioner intended to develop his property; (2) he did not have the proper access thereto; and (3) the public in general would have use of the highway. Viewing the case in this posture, that court could not say, as a matter of law, that no public necessity existed.

In addition, to affirm here would enable disappointed litigants in all cases of this nature to raise the propriety of the finding of public necessity at three stages: before the commissioners, before the County Court, and before the Appellate Division. This would seriously subvert the legislative intent of section 179, i.e., to have the factual determination of public necessity made at the local level with review of said determination by the local County Court. (Highway Law, §§ 174, 173.)

The order of the Appellate Division should be reversed and the order of the County Court reinstated, without costs.

Chief Judge Desmond and Judges Van Voorhis and Burke concur with Judge Soileppi; Judges Dye, Fuld and Bergan dissent and vote to affirm upon the following ground: Under all of the circumstances in this case we believe the Appellate Division was correct in finding that the proposed taking is neither necessary nor for a public purpose.

Order reversed, etc.  