
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to All the Real Estate Not Owned by the Mayor, Aldermen and Commonalty of the City of New York, or Any Right, Title or Interest Therein Not Extinguishable by Public Authority, Mentioned and Described in the First Section of an Act Entitled “An Act to Provide for an Addition to Riverside Park, in The City of New York,” Being Chapter 727 of the Laws of 1896. The City of New York, Appellant; John O. Baker and Others, Respondents.
    
      Condemnation of land for Riverside Park, in New York city — a reference in chapter 727 of the Laws of 1896 to the provisions of law “ relating to the taking of private property ” covers those relating to the making of an assessment — it is not in violation of section 17 of article 3 of the Constitution — the word one-third” construed to have teen intended for “ one-fourth ” — interest from the date of the vesting of title in the city.
    
    The Legislature, when enacting chapter 727 of the Laws of 1896, entitled “An act to provide for an addition to Riverside park, in the city of New York,” intended, by section 2 of the statute, which provides, “ Except as provided in this act, all provisions of law relating to the taking of private property for public streets or places in said city are hereby made applicable so far as the same may be necessary for the acquiring of said land as aforesaid,” to make the provisions of law referred to therein applicable not only to the steps and proceedings to be taken in acquiring the land, but also to the taking and collection of the local assessment provided for in the statute.
    The statute is, consequently, not unconstitutional, because it does not contain an express provision that notice shall be given to the owner of lands which are assessed for benefits.
    Inasmuch as section 2 of the act of 1896 merely refers to local statutes, to indicate ■ the procedure to be followed, the failure to insert the provisions of such local statutes in the act does not render it unconstitutional under section 17 of article 3 of the Constitution of the State of New York, which declares, “no act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act or which shall enact that any existing law or part thereof shall be applicable except by inserting it in such act.”
    The word “one-third,” used in that part of section 4 of the statute which provides, “ the commissioners * * * shall assess to the extent of one-third of the amount of said award, interest, costs and expenses upon all such parties * * * as they may deem to be benefited by such improvement to the extent which said commissioners * * * deem such parties * * * benefited thereby * * was inadvertently used, as appears from an examination of the preceding part of the section, providing “ that all costs and expenses of the proceeding for acquiring title to the lands taken under this act shall be borne and paid, three-fourths thereof by the mayor * * * and the remaining one-fourth by the parties and persons, lands and tenements benefited the word “one-fourth” was intended and the statute should be so construed.
    The act having provided that title to the property affected should vest in the city at the beginning of the proceeding and before the commissioners had an opportunity for assessment, the provision of section 4, that interest on the value of the property taken from time to time when title vested in the city shall be included in the assessment, is proper, as such interest is a part of the cost of the proceeding and is not occasioned by the delay of the city in making the award.
    Ingraham and McLaughlin, JJ., dissented.
    Appeal by The City of New York from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of July, 1901, as amended by two orders entered respectively in said clerk’s office on the 28th day of June, 1901, and on the 12th day of August, 1901, as refuses to confirm the report of commissioners of estimate and assessment theretofore appointed in the proceeding as to certain assessments for benefits.
    
      John P. Dunn, for the appellant.
    
      Joseph A. Flannery, for the respondents Baker and others.
    
      Henry H. Sherman, for the respondent Mott Haven Company.
   Laughlin, J.:

The special act (Laws of 1896, chap. 727), under which this proceeding was instituted, it is true, contains no express provision prescribing that notice shall be given to the owners of lands to be assessed for benefits; but it refers to the general provisions of law relating to proceedings for opening streets in the city of New York, which provide for notice in such cases (see Consol. Act [Laws of 1882, chap. 410], §§ 958-1005, as amd.) and makes them applicable ; and that is sufficient. (Choate v. City of Buffalo, 39 App. Div. 379; affd., 167 N. Y. 597.) The sufficiency of the law, if it contains such reference, is conceded in the opinion of Mr. Justice McLaughlin ; but he contends that the reference to the other provisions of law relates only to those provisions regulating the steps and proceedings to be taken in acquiring the land. I am of opinion that the making and collection of an assessment for benefit, which is the method prescribed by the Legislature for raising part of the money with which to pay for the lands to be acquired, constitute part of the steps and proceedings in acquiring the title, within the fair intent of the Legislature in enacting the special statute.

It is provided in section 3 of the special act that, the title shall vest in the city when the commissioners of estimate and assessment. take and file their oaths of office. The only theory noon which a statute providing that title shall pass before the owner is paid can ' be deemed constitutional is, that ample provision has been made by law for ascertaining and insuring the payment of the compensation to which the owner is entitled. Here, the scheme upon the part of the respondents is to put the burden of this entire proceeding upon the general taxpayers; whéreas, as the Legislature, viewed it, the taking of lands for Riverside Park was a special benefit to the adjacent property; and manifestly this is so, and such property should in all fairness contribute more towards the expense of the proceeding than property remote from the improvement. If the construction of the law contended for by the respondents be sustained, it is doubtful whether any of the act is valid, for the reason that in that view complete provision would not be made for. the payment of the awards. It cannot be successfully contended that the Legislature did not intend that the commissioners of estimate and assessment should make an assessment for benefit. It is expressly provided in the 4th section of the act that three-fourths of the aggregate of the awards for damages,- with interest and the costs and expenses of the proceedings, shall be borne by the taxpayers at' large - and one-fourth by the property specially benefited by the improvement to be assessed by the commissioners.

There is a manifest error in the direction of the assessment, whereby it is erroneously stated that the amount to be assessed is one-third / whereas, in accordance with the preceding provision, it should be one-fourth of the total of the awards, interest, costs and expenses. The statute should be construed as if the direction for making the assessment specified the amount as one-fourth, in accordance with the preceding provision. Unquestionably a tax or assessment cannot be levied without notice, but it is for the Legislature to prescribe the kind of notice and how the same shall be given, whether by publication or otherwise. (Stuart v. Palmer, 74 N. Y. 183.) This has long been the settled law of the State. It is well known to" the bar, and was presumably known by the members of the Legislature, where the question of framing statutes of this nature to avoid constitutional objections frequently arises.

To hold that the Legislature did not intend, by the reference to the other statutory provisions, to make those relating to the levying of local, assessments applicable to the assessment directed to be made in this proceeding would be to impeach the intelligence of the .legislators, for it would imply that they supposed that a valid assessment could be levied without any notice or hearing to the owners of the property assessed upon the question as, to whether their lands were in fact benefited or as to the amount of benefits. The language employed in the act is fairly susceptible of the construction that the Legislature intended that the general provisions of law applicable to street opening proceedings and to assessments should be applicable. Section 1 of the act describes the lands to be taken and section 2, after imposing the duty on the corporation counsel of instituting the proceedings, provides as follows: Except as provided in this act, all provisions of law relating to the taking of private property for public streets or places in said city are hereby made applicable so far as the same may be necessary for the acquiring of said land as aforesaid.” When it is remembered that under the general statute to which reference is made, the eminent domain and assessment proceedings are conducted as one, I think it is very clear that this provision relates to the steps required to be taken to make and collect assessments with which to defray part of the awards, interest, costs, and expenses, as well as the steps with reference to ascertaining the damages sustained by property owners in consequence of the taking of their lands.

■ One-third of the total amount has been assessed, instead of one-fourth. I am, therefore, of opinion that the order should be reversed, without costs, and the assessments should be reduced by the difference between one-third and one-fourth of the total amount of awards, interest, costs and expenses; and as so modified the report should be confirmed.

Van Brunt, P. J., and O’Brien, J., concurred; Ingraham and McLaughlin, JJ., dissented.

O’Brien, J. (concurring):

By virtue of chapter 727 of the Laws of 1896, entitled “ An act to provide for an addition to Riverside park in the city of New York,” the park commissioners adopted a resolution on July 27, 1896, requesting the corporation counsel to initiate this proceeding, and as the result “ commissioners of estimate and assessment,” as provided in the act, were appointed by the court in December, 1896, public notice of the application for their appointment having previously been given on November 23, 1896, and on successive days. There was no opposition to their appointment, and in December, 1899, the commissioners, in accordance with the provisions of the Consolidation Act relative to street and park openings (Laws of 1882, chap. 410, §§ 958-1005, as amd.), made and filed a preliminary estimate and assessment, and, in accordance: with the provisions of .the Consolidation Act, notice was given to the parties affected and an opportunity afforded to them to be heard. Thereafter the commissioners made award's for land taken, and by virtue of the act of 1896 assessed one-third of the total awards, interest, costs and expenses of the proceeding upon the property deemed to be benefited. Objections were filed to the report by the respondents upon the ground that the act of 1896 was unconstitutional and they were not liable to the assessments levied.

The respondents, therefore, do not attack the assessment upon the ground that the commissioners erred with respect to the value of the property damaged, or upon the ground that they did not as matter of fact have notice of the proceeding and an impartial hearing, but upon the broad ground that the act of 1896 is unconstitutional because incomplete in that it does not in terms provide a proper notice and hearing which, is essential in proceedings involving the levying of assessments.

In Stuart v. Palmer (74 N. Y. 183) it is said that a. law which makes no provision in imposing an assessment for a notice and an opportunity for a hearing by the owners of property to be assessed, is unconstitutional because depriving them of property without due process of law. The question turns, therefore, upon whether the provisions of section 2 of the act of 1896 are sufficient to assure to property owners a proper notice and hearing upon assessments. That section after referring to the method by which title shall be acquired provides: “ Except as provided in this act all provisions of law relating to the taking of private property for public streets or places in said city are hereby made applicable so' far as the same may be necessary for the acquiring of said land as aforesaid.” The construction given to this language by the Special Term is, that it provides merely for the acquisition of title and has no relation whatever to assessments. (Matter of Mayor, etc., of New York, 34 Misc. Rep. 719.) It will be observed, however, that the language quoted is not confined to the word “ title,” but states that provisions of law are applicable which relate to the “ taking of private property” and the “acquiring of said land.” Obviously the “ taking of private property ” and the “ acquiring of said land ” requires not only the vesting of title but payment for the property, and this latter with respect to “public streets or places” means the levying of assessments. That assessments were contemplated appears from the name given to the commissioners by the act, they being designated as “ commissioners of estimate and assessment,” and that they were so directed appears also from the specific provision as to the proportion of the awards, etc., which they were to “ assess ” upon such parties as are benefited. Moreover an assessment being necessary to make the act complete, it was plainly the intent of the Legislature by the language quoted to provide for such assessment in the manner indicated in existing laws. And when we examine the existing laws, it appears that a complete method of procedure was provided by the Consolidation Act in the sections (supra) relating to “ opening streets, avenues and public places,” and it was these provisions .that the commissioners complied with in making this assessment.

For the reason, therefore, that the language of section 2 of the act of 1896 is broad enough to include provisions of law relating to assessments as well as to the vesting of title, and that assessments were contemplated by the act, I think that the act is constitutional, because it makes .provision for the giving of notice and a hearing to the property owners assessed.

The further objection is made, however, by the respondents that the act is unconstitutional under section 17 of article 3 of the Hew York State Constitution declaring that no act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act or which shall enact that any existing law or part thereof shall be applicable except by inserting it in such act.’ Inasmuch as section 2 of the act of 1896 merely refers to a local statute to indicate the procedure necessary in taking the property, including the acquisition of title and the levying of assessments, it was unnecessary to incorporate fully the provisions of that statute and the reference made to it in the act was sufficient. (Choate v. City of Buffalo, 39 App. Div. 379 ; affd., 167 N. Y. 597.)

We next come to the consideration of the provisions of section 4 of the act of 1896 specifying hhe proportion of the awards, etc., which shall be borne by property owners benefited; It is urged by the respondents that under that section the property owners should not in any event be assessed for more than one-fourth of the awards, etc. The section provides: All damages awarded by the commissioners of estimate and assessment to be appointed hereunder and confirmed by the court with interest thereon from the date when the title to the lands and premises * * * shall have vested in the mayor -x- •* ' * ag provided by this act, and all costs and expenses of the proceeding for acquiring title to the lands taken under this act shall be borne cmd paid, three-fourths thereof by the mayor, * " * * and the remaining one-fourth by the parties and "persons, lands and tenements benefited by such improvement, and the commissioners * * * shall assess to the extent of one-thvrd of the amount of" said award, interest, costs and expenses upon all' such parties * * * as they may deem to be benefited by such improvement to the extent which said commissioners * * * deem such parties * * * benefited thereby * *

The appellant contends that the action of the commissioners in assessing the property owners one-third and not one-fourth was right upon the ground that “ if the latter part of a statute be repugnant to the former part thereof, it shall stand, and, so far as it is repugnant, be a repeal of the former part, because it was last agreed to by the makers of the statute” (Bacon’s Abr. tit. Statute, D.), and that “ the express and explicit delegation of authority to assess one-third should repeal the implied power to assess one-fourth of the cost and expense.” The section is inconsistent in its provisions and there was, I think, obviously a mistake in the use of the word “ one-third,” the word “ one-fourth ” being clearly intended. The section provides in express terms that the city should pay three-fourths and the property owners one-fourth and it is evident that the use of the word “ one-third ” in the latter portion of the section was inserted through inadvertence. The word “ one-third,” therefore, should be read “ one-fourth.” (Burch v. Newbury, 10 N. Y. 374 ; Haney v. State, 34 Ark. 263 ; Graham v. Charlotte & S. C. R. R. Co., 64 N. C. 631; Mankel v. United States, 19 Court Cl. 295; Chambers v. State, 25 Tex. 307.)

The respondents further object to the provisions of section 4 of the act of 1896 for the reason that it includes interest in the award, and reference is made to Matter of Mayor (40 App. Div. 452; affd., 161 N. Y. 622). In that cáse the granting of interest upon the award was criticised, but therein the court said, after referring to the old law which did not sanction, and the new law (charter) which directed, the including of interest: “We think these modifications were not intended to embrace awards and assessments which had ripened into practical finality prior to the taking effect of the charter.” In the later case of Matter of City of New York (In re Dorsett) (92 App. Div. 523) the including of interest as compensation was expressly approved. The reason for this is that the existing law provides for the acquiring of title at the very beginning of the proceeding and before the commissioners have had an opportunity for assessment. The person damaged is, therefore, entitled to interest on the value of the property taken from the vesting of the title in the city. This element of interest is a part of the cost of the proceeding, and is not occasioned by delay of the city in making an award. It should, therefore, properly be included in the assessments.

In conclusion, I think that the act of 1896 under which the assessment was made was constitutional, and that the assessment was properly imposed, but that in amount it was excessive, because levied upon a basis of one-third instead of one-fourth of the awards, costs and expenses. The report should accordingly be modified by reducing the assessment to that amount, and as so modified confirmed, without costs.

Van- Brunt, P. J., and Laughlin, J., concurred.

McLaughlin, J. (dissenting):

This proceeding was instituted under chapter 727 of the Laws of 1896 for the purpose of acquiring title to certain lands for an addition to Riverside Park, in the city of Hew York.

Commissioners were appointed who, after various hearings, filed a preliminary and subsequently a final report, in which they awarded damages to the owners of land taken and imposed an assessment Upon other lands for benefits conferred. Th',e respondents opposed the confirmation of the final report in so far as it imposed an assessment upon their lands, upon the ground that the act authorizing it was unconstitutional and void, in that it deprived them of their property without due process of law. The -court at Special Term sustained their objections (Matter of Mayor, etc., of New York, 34 Misc. Rep. 719), and the city has appealed from so much of^ the order as refused to confirm the report of the commissioners.

I think the order should be affirmed. The: act, as I read it, does not in terms, nor by a reference to other statutes, provide for a notice to be given to the owners of land assessed for benefits, and if this be true it is unconstitutional. The 1st section describes the lands to be taken and the 2d makes it the duty of the corporation counsel to take the necessary steps for. acquiring the title, and then provides as follows : Except as provided in this act all provisions of law relating to the taking of private property for public streets or places in said city are hereby made applicable so far as the same may be necessary for the acquiring of said land as aforesaid.” Section 3 provides that the title to the lands taken shall vest in the city at the time of the filing of the- oaths of the commissioners of estimate and assessment. Section 4 in no way relates to the title of the land to he taken, but simply has reference to the damages to he paid and by whom.. This section provides that all damages awarded for the lands taken, with interest thereon, and all costs and expenses of the proceeding “ shall be borne and paid, three-fourths thereof by the mayor, aldermen and commonalty of the city of New York and the remaining one-fourth by the parties * * * benefited by such improvement,” and directs that the commissioners “ shall assess to the extent of one-third of the amount of said award, interest, costs and expenses upon all such parties * * * as they may deem to be benefited by such improvement * * Section .5 relates to the construction and maintenance of the addition to the park and the raising of the necessary funds for that purpose.

It will be observed that the only provision in the act from which it can possibly be urged that any notice was to be given is the portion of the 2d section above quoted, and this relates to acquiring the title and not to making an assessment for benefits. This provision refers to an existing local statute (See Consol. Act [Laws of 1882, chap. 410], §§ 958-1005, as amd.), in order to indicate the procedure necessary to be taken for the acquisition of the land. The provisions of the local statute as to acquiring title were thus incorporated in the act (Choate v. City of Buffalo, 39 App. Div. 379 ; affd., 167 N. Y. 597), but nothing was incorporated as to the assessments for benefits. The authority and proceedings to be taken to acquire the title are contained in the 1st, 2d and 3d sections of the act. The 4th section, in so far as it relates to assessments for benefits, deals with an entirely new subject and one in no way related to and not necessarily having any connection with the subject of acquiring the title. The duty of the commissioners in relation to the acquisition of the land required for the addition to the park was entirely distinct from their duty of levying an assessment for benefits (Matter of Mayor, 46 App. Div. 52), nor did the acquisition of the title require any assessments for benefits.

The case, in principle, cannot he distinguished from Stuart v. Palmer (74 N. Y. 183). It was there said that “The Constitution sanctions no law imposing such an assessment without a notice to and a hearing or an opportunity of a hearing, by the owners of the property to be assessed. It is not enough that the owners may by chance have notice or that they may, as a matter of favor, have a hearing. The law must require notice to them- and give them the right to a hearing and an opportunity to be heard. It matters not upon the question of the constitutionality of such a law that the assessment has in fact been fairly apportioned. The constitutional validity of law is to be tested not by what has been done under it,-but by what may, by its authority, be done. The Legislature may prescribe the kind of notice, and the mode in which it shall be given, but it cannot dispense with all notice.” ' This case was followed and cited with approval in Remsen v. Wheeler (105 N. Y. 573) the court saying: “ The lot owners were entitled at some stage of the proceeding to a notice and an opportunity to be heard; and unless the law gave them the right to notice and an opportunity to be heard before the board which was authorized to-impose the assessment, it was unconstitutional and void for the reason stated in Stuart v. Palmer (74 N. Y. 183).” It was also-followed in McLaughlin v. Miller (124 N. Y. 511) and Matter of Trustees of Union College (129 id. 308). For these reasons I think the order, in so far as appealed from, should be affirmed, with ten. dollars costs and disbursements.

Ingraham, J., concurred.

■ Order reversed and report modified as stated in opinion, and as, modified affirmed, without costs.  