
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title to Certain Real Estate, etc., Situated in the Sixth Ward of the Borough of Manhattan, in the City of New York, Duly Selected, Specified and Located by the Commissioner of Bridges of the City of New York, with the Approval of the Board of Estimate and Apportionment of Said City, Pursuant to the Provisions of Chapter 712 of the Laws of 1901, for the Reconstruction of the Westerly or Manhattan Terminal of the New York and Brooklyn Bridge, or for the Construction of an Extension Thereof for the Better Accommodation of Pedestrians, Vehicles and Railroad Passengers Using Said Bridge or Terminal. Frances J. Storms and Others, Appellants.
    
      Eminent domain — reconstruction of the westerly end of ¿he New York and Brooklyn bridge — it is not a condition precedent that an effort be made to acquire by purchase title to the, land required — consent of local authorities and owners to railroad tracks — what plans must be first prepared and approved.
    
    Chapter 712 of the Laws of 1901, which authorizes the reconstruction and extension of the westerly end of the New York and Brooklyn bridge and authorizes the city to acquire, by purchase or by eminent domain proceedings, the necessary lands for that purpose, does not make -it incumbent upon the city, as a condition precedent to its right to institute the eminent domain proceedings, to make an effort to acquire the lands desired by voluntary purchase.
    It is not an objection to the institution of the eminent domain proceedings that the consent of the local authorities and of the abutting property owners to the laying of- railroad tracks has not been obtained, when it does not appear that the construction of any railroad tracks is contemplated.
    The preparation and approval of general plans and specifications for the improvement is, however, a condition precedent to the right of the city to institute the eminent domain proceedings.
    
      ' These plans and specifications need not be prepared with .the minuteness and detail required for the awarding of a contract for the erection of the improvement. It is sufficient that the improvement shall be planned in a general- way so that the court can see that the determination of the authorities, that the . land sought to be acquired is necessary for the carrying out of the improvement, ,is reasonably warranted.
    What action on the part of the board of estimate and apportionment, in passing upon general plans and specifications submitted to it by the commissioner of bridges, does not constitute an approval of such plans sufficient to entitle the city to institute condemnation proceedings, although the board of estimate and apportionment expressly authorized the institution of condemnation proceedings, considered.
    Appeal by Frances J. Storms and others from an order of the Supréme Court, made at tire New York Special Term and entered in the office of .the clerk of-the county of New York on the 1st day of December, 1904, appointing commissioners of estimate and appraisal in the above-entitled proceeding.
    
      Lewis L. Delafield, for the appellants Johnston and others.
    
      Edward W. S. Johnston, for the appellants Frances J. Storms and Alfred Storms.
    
      William, J. Underwood, for the appellant Ziegler.
    
      Terry Smith, for the appellants Gerken and Waubun Company.
    
      Theodore Connoly, for the respondent
   Laughlin, J.:

This proceeding was instituted pursuant to the provisions of chapter 712 of the Laws of 1901, which authorizes the reconstruction of the westerly end of the New York and Brooklyn bridge or the construction of an extension thereof, or both such reconstruction and extension, and authorizes the city to acquire by consent or purchase or by eminent domain proceedings the necessary lands for that purpose. Section 1 of the act authorizes the commissioner of bridges of the city of New York, subject to the approval of the board of estimate and apportionment, to prepare or - cause to be prepared and to adopt plans and specifications for the improvement and to select and determine the lands necessary to be acquired therefor and empowers the city to acquire title thereto by condemnation proceedings. Section 2 authorizes the city to contract for the construction of the improvement after the adoption and approval of the plans and specifications and the selection of the lands necessary to be acquired and the approval thereof. Section 3 declares that the lands when acquired and the improvement when constructed shall belong to'the city and be part of the Few York and Brooklyn bridge. Section 4 provides that the city may from time to time acquire title by purchase, by consent, or by eminent domain proceedings. Section 5 authorizes the issue of bonds to pay for the lands and improvement. Section 6 requires the consent of the local authorities and the constitutional consents of abutting property owners for the construction or operation of any street railroad in or along a street in making the improvement. Section 7 repeals inconsistent acts and parts of acts and section 8 provides that the act shall take effect immediately; that is, on May 10, 1901.

It does not appear that the consent of the local authorities or of abutting property owners to the construction of any railroad track in or along any street has been acquired, nor is it shown that the authorities were unable to agree with the property owners upon a purchase of the lands by consent and these points are urged by the appellants as fatal to the city’s right to institute this proceeding. It sufficiently appears that the city has not acquired the property by voluntary purchase else this proceeding would be unnecessary. While in this instance the Legislature has seen fit to authorize the city to purchase the necessary property without instituting condemnation proceedings, still it is not the, policy of the law to require municipal corporations, authorized to acquire property for public purposes, to make an effort, as a condition precedent, to acquire .the same by voluntary purchase as is the case with railroad corporations. The authority on the part of municipal officials to purchase without condemnation proceedings is so open to abuse that ordinarily it is not conferred. We are of opinion, therefore, that it was not a condition precedent to the city’s right to institute condemnation proceedings that it should have endeavored to acquire title by voluntary purchase.

The objection that the consent of the local authorities and of abutting property owners to the laying of railroad tracks has not been obtained is likewise untenable. It does not yet appear that any railroad track ■ is to be laid in or along, any street which will require-tlie-consent of the local authorities. Nor is it essential to the enjoyment 6f the land sought to be acquired for the purpose authorized by the act that such- should be the case. The extension may be proper and necessary as an approach to the bridge for the use of foot passengers and vehicles without the construction of any street railroad tracks thereon.

The appellants also contend, and raised the objection by answer duly interposed, that plans and specifications. for this improvement have not been prepared and approved and that this was a condition precedent to the right of the city to acquire land by eminent domain. The decision of the question presented by this objection depends Upon a construction of the statute. The only provisions of .the statute material to the decision of this question are those contained in section 1, which provides as follows: “ The commissioner of bridges of the city of New York is hereby authorized- to preparé or to cause to be prepared and to.submit to the board of' estimate and apportionment of such city, and with the approval of said board by a majority'vote thereof to adopt plans and specifications for the ■ reconstruction of the westerly or Manhattan términal of the New York and Brooklyn bridge, or for the construction of an extension thereof by a loop system or Otherwise, or for' both such -construe-' tion and reconstruction, for the better accommodation of pedestrians, vehicles and railroad passengers Using said bridge or terminal, which plans and specifications, may; also provide for the construction* maintenance and operation of- railroad tracks in and upon such terminal or extension,, or any part-thereof, and may also provide for the.location of such extension • through, over or under any such streets, highways, avenues, private or public property,, buildings, parks or places as said commissioner, with such approval of said board, shall determine to be the most feasible location therefor. Provided, however, that if any such extension, construction or reconstruction shall involve the appropriation- or occupation of the sub-surface of any street, park or public place, or if any such extension, construction or reconstruction shall involve . construction of - any railroad elevated above the surface" of any such street, park or public place, or any other construction,, and such railroad or other construction shall in any way interfere with any rapid transit-structure authorized by the board of rapid transit railroad commissioners, then in either such case the plans and specifications for any such extension, construction or reconstruction, so far as the same shall or may interfere with any rapid transit structure, shall require the approval also of the board of rapid transit railroad commissioners for the said city. The said commissioner is also authorized} with the approval of said board of _ estimate and apportionment by a majority vote thereof, to select and specify such real estate, tenements, hereditaments, corporeal or incorporeal rights in the same as such commissioner with such approval of said board shall determine to be necessary for such construction or reconstruction purposes, which are hereby declared to be public uses and purposes, and the city of Hew York is hereby authorized to acquire title_ thereto by condemnation. The said commissioner is also authorized to employ and consult with expert engineers in the preparation of and determination upon such plans, specifications and location, and to pay said engineers & reasonable compensation for such employment and consultation in the same manner as other persons employed by the said commissioner are paid.”

We agree with the contention of the appellants that general plans and specifications for the improvement must first be determined upon, and that the selection of the lands which the city is authorized to acquire is dependent upon the necessity therefor for the purpose of carrying out the improvement shown by such general plans and specifications. The commissioner of bridges recommended in writing to the board of estimate and apportionment a general plan and general specifications, setting forth a description of the lands which he deemed necessary therefor. The plan submitted showed the outline of the structure to be erected, indicating the construe^ tion thereon of certain railroad tracks, and the specifications showed in a general way the character of the improvement. He recommended the approval of his action,, but the board, instead of adopting a resolution approving the plans and specifications as recom-. mended, and evidently intending to reserve action upon the plans and specifications for the improvement, adopted a resolution presented in writing by the president of the borough, reciting at the outset: “ The President of the Borough of Manhattan offered the , following resolution authorizing condemnation proceedings for .the acquisition of the property without committing the city any fuf.-ther; ” and containing preambles reciting .the action taken and recommended by' the commissioner of bridges, and followed .by resolutions, which-were unanimously adopted as follows : “ Resolved, That the Board of Estimate and Apportionment of .the City of Yew .York does approve the selection, specification and location by the said - Commissioner, of such real estate, tenements, hereditaments, corporeal or incorporeal rights in the same as are shown and determined to be necessary for such- construction or reconstruction on ■the said plans and specifications or by the said descriptions ; and it , is further í . ,

Resolved, That the said Commissioner of. Bridges be and-hereby is instructed to pré.pare. and forward to -the Corporation Counsel a technical, description by metes and bounds or other proper description of such real estate, tenements, hereditaments, corporeal or incorporeal rights therein as may not now be owned by the City of Yew .York,and may be shown or indicated on the said plans and specifications or in the descriptions hereby approved, and the Corporation Counsel, upon the 'receipt • of the said technical descriptions, is hereby authorized and directed to acquire title thereto on behalf of' the City of Yew York in the manner prescribed by law ; and - it is further1' . "

“ Resolved,, That the Commissioner of Bridges do hereafter, from time to time, as.-may be necessary, prepare and submit to this Board for its approval further plans, specifications and descriptions as may be required to carry out the project hereby approved and as may be' provided by law.”

We are of opinion that these resolutions do not constitute an approval of the general plans and specifications for the improvement, and that they were merely intended to approve the-recommendation of the commissioner as to the selection of lands necessary-to- ,be acquired for an improvement to be made under the act, the. nature, character and extent of which was to be r determined in the future. ■ Thex resolutions in fact fell somewhat short of an approval of the selection of the lands, for in form the selection is approved only so- far as the saíneare shown and determined to be necessary for such construction or reconstruction on the said plans and specifi- . cations or by the said descriptions.” Although the resolutions refer to the general, plans arid specifications, it is evident that they are not approved or, if approved at all, they are referred to and approved merely -to the extent that they constitute a drawing, like a survey, of the lands deemed necessary, but they are not approved with reference to any part of the plan of the structure to be erected thereon. Of course it is not essential to the city’s right to institute eminent domain proceedings that plans and specifications with complete minuteness and details sufficient to award a Contract for the erection of the improvement should first be prepared and approved, but it is essential that the improvement shall be planned in a general way so that the court may see that the determination of the authorities that the land is necessary for carrying out the improvement is. reasonably warranted.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements to each of the appellants appearing separately, and motion denied, with ten dollars costs to each of the property owners, appearing separately, who are appellants.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to each of the appellants appearing separately, and motion denied, with ten dollars costs to each of the property owners, appearing separately, who are appellants.  