
    In the Matter of Opening Bay Twenty-Third Street, between Eighty-Sixth Street and Benson Avenue, in the City of Brooklyn. In the Matter of Closing De Bruyn’s Lane, between Eighty-Sixth Street and Benson Avenue, in the of City of Brooklyn. Frederick Snyder, Petitioner; The City of Brooklyn, Respondent.
    
      Brooklyn — liability of, for an award, made in a street opening proceeding — effect on the obligation of the city of a charter provision that awards are to be paid pro ■rata from assessments as collected,.
    
    ’The amendment, made to the charter of Brooklyn by section 27 of title 18 of chapter 863 of the Laws of 1873, directing the city comptroller to “ pay to a person to whom damage may have been awarded ” in a report of commissioners appointed to open a street, “the amount of such damages, with interest at the rate of seven per cent per annum, from a day thirty days subsequent to the day of confirmation of the. respective assessments, pro rata, as moneys on account of such assessments shall be received from the department of collection,” was not intended to alter the ultimate liability of the city under the charter of 1854, to pay such awards, but is properly construed as requiring that, during-the period prescribed for the collection of an assessment and before the assess- • ment roll is turned over by the collector to the registrar of arrears, money received from the assessment is to bo paid, prorata, on the awards made to landowners, and that, at the termination of that period, the city shall be forthwith, liable to pay any awards then unpaid, whether in whole or in part.
    Motion by the petitioner,. Frederick Snyder, to vacate and set aside orders of the Appellate Division in the second department,, entered in the office of the clerk of the county of Kings on the 17th day of June, 1896, and on the 1st day of March, 1897, appointing commissioners to estimate the damages caused by the opening-of Bay Twenty-Third street and by the closing of De Bruyn’s lane..
    
      Nathaniel H. Clement, for.the motion.
    
      Joseph A. Burr, opposed.
   Cullen, J.:

There is involved in this application but one question, whether by the present charter, the city of Brooklyn is bound to pay, either primarily or ultimately, awards for lands taken for street openings. If the city is not liable for such awards, then, undoubtedly, the charter provisions as to street openings are unconstitutional and void. For the landowner cannot be relegated to the- assessment district as-the sole source of payment of his award. (Sage v. City of Brooklyn, 89 N. Y. 189 ; Mitchell v. The Village of White Plains, 138-id. 627 ; affd., 62 Hun, 231.)

The Sage case decided that under the charter, as it stood jirior to-1873, the city was liable for such awards. The liability was placed on the provisions of section 16, title 4 of the charter of 1854 (Chap. 354): “ The city comptroller shall pay to the persons Sr to the - attorneys or legal representatives of such persons to whom damages-may have been awarded in such report, the amount of such damages without-any deduction therefrom by way of fee or commission.” In 1873 this provision was amended so as to read: “ The comptroller shall pay to the persons * * * to whom damage may-have been awarded in such report, the amount of such damages, with interest at the rate of seven per centum per annum from a day thirty days subsequent to the day of confirmation of the respective: assessments, pro rata, as moneys on account of such assessments. shall be received from the department of collection.” (§ 27, tit. 18, chap. 863.)

It is this amendment that gives ground for the present controversy. It is insisted by the counsel for the landowner that though the duty imposed on the comptroller to pay. was, under the charter ■of 1854, absolute, it. is since the amendment of 1873 only qualified, being limited to the receipt from assessments as the source'of such payment. If the present section were an original one, with no history, this argument would be cogent, if not controlling. But in the light of previous legislation, and the custom which had prevailed in the city as to the payment of awards, we think it was not the intention of the Legislature by the amendment to affect the city’s responsibility. Prior to the decision" in the Sage ease, the liability ■of the city to secure the payment of awards was considered a question of very grave doubt. McCullough v. The Mayor (23 Wend. 458) was regarded as an authority against such liability. It had been the practice in the comptroller’s office to pay the landowners who first filed claims fór their awards in that office the amount of their awards from the moneys received from the assessment. Thus, payment to the landowners who filed their claims later was.deferred, and in some cases altogether denied. It was to correct this practice, and not to affect the question of the city’s liability or non-liability for payment, that the statutory amendment was enacted. 'This is clearly pointed out by Jud'ge Eakl in his dissenting opinion in the Sage case, and is well known to all who are conversant with the municipal history of the city of that time. It is a cardinal rule that a statute should be so. construed as to be constitutional instead of unconstitutional, if its terms permit of that result. To hold the ■amendment of 1873 as relieving the city from ultimate responsibility for awards to landowners, would render invalid all street .■openings which have been-had since its enactment, and deny the ■city the power to make such improvements without further legislation. Certainly this is a result to be avoided, and we think that the amendment .of 1873'should not be so construed as to effect that result, when it may be said to be a matter of common knowledge within the city that the amendment was enacted for no such purpose. We think that full effect can be given to the amendment of 1873 by holding, as suggested. by the learned corporation counsel, that during the period prescribed for the collection of the assessment, and before the assessment roll is turned over by the collector to the registrar of arrears, money received from assessments is to be paid pro rata on the awards to landowners, and that at the termination of such period the city .is forthwith liable to pay any awards then unpaid, either in whole or part.

The motion should be denied, with ten dollars costs and disbursements.

All concurred.

Motions denied, with ten dollars costs and disbursements.  