
    Isabella H. Mitchell, Appl’t, v. The Village of White Plains, Resp’t
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Eminent domain—Validity of proceedings—Award.
    The fact that an award for land taken was made to the husband of the owner, instead of to her, will not invalidate the proceedings. She would be entitled to the award although the owner was erroneously named in the commissioners’ report.
    2. Same—Constitutional law—Laws 1868, chap. 552.
    The provision of chapter 522, Laws 1868, authorizing the opening of a road from Mamaroneck to White Plains, relative to compensation for lands taken is unconstitutional and void, as the commissioners are thereby limited to paying awards from a single source, viz: the local assessment.
    Appeal from judgment dismissing the complaint Action to restrain defendant from laying its sewer through lands claimed to be owned by her, and for damages.
    Proceedings had been previously taken in pursuance of chapter 522, Laws 1868, to open and lay out a highway through plaintiff’s premises, but she was not made a party thereto, the report of the commissioners naming her husband as the owner and the award was made to him. Plaintiff claims that such proceedings did not divest her of title as she has not been compensated and that the provision of the act in relation to compensation is unconstitutional and void.
    
      M. M. Silliman (Wm. P. Fiero, of counsel), for app’lt; H. T. Dykman, for resp’t.
   Pratt, J.

That the award was made to the husband of the plaintiff instead "of to the plaintiff would not invalidate the proceedings to open the highway in dispute in this case. The plaintiff’ would be entitled to the award despite the fact that 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 of 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 of 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 benefits 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 unconstitutional and void.

The judgment appealed from should be reversed and a new trial ordered, costs to abide event

Cullen and Bartlett, JJ., concur.  