
    In the Matter of the Application of the Westminster Heights Company, Appellant, for a Peremptory Writ of Mandamus against John J. Delany, as Corporation Counsel of the City of New York, Respondent.
    
      ■Street opening in New York city — tender of a, deed, of land to be taken therefor by the owner—when it must be made — application to the board of estimate and apportionment, when unnecessary.
    
    Under section 992 of the charter of the city of New York (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), which allows the owner of land, within the lines of a street about to be laid out, to tender a conveyance of such land to the city and thereby relieve himself from liability for the expense of opening such street, it is not necessary that the tender of the conveyance he made as soon (as the street has been laid out upon the map and before it has, been decided to open it
    A tender of the deed made after the board of estimate and apportionment has directed the corporation counsel of the city to institute proceedings for the opening of the street, but before commissioners of estimate and assessment have been appointed in such proceedings, is, therefore, timely, and it is not' incumbent upon the property owner making the tender to apply to the board of estimate, and apportionment under section 994 of the charter, which provides that it shall be lawful for the city at any time or times, either before or after the appointment of commissioners, to agree with the owner for the cession of the land required of him, and for and. about the compensation and recompense to be made to him, and for and about the allowance or sum to be paid by him in the premises.
    - Appeal by the relator, the Westminster Heights Company, from ' an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26tli day of September, 1904, denying the relator’s motion for a peremptory writ of mandamus.
    
      Alexander McKinny, for the appellant.
    
      James F. Quigley [ John J.Delany with him on the brief], for the respondent.
   Hirschberg, P. J.:

This appeal is a.sequel to that taken by the same appellant in Matter of City of New York (Avenue I) (107 App. Div. 581), decided herewith. After the appointment of commissioners of estimate and assessment in that case, the appellant applied at Special Term before another justice for an order directing the issuance of a peremptory writ of mandamus compelling the corporation counsel of the city of New York to accept and record the deed of the land belonging to the appellant and required by the city in the proposed improvement, which had been duly executed and delivered to him, but which he refused to accept on the ground that it was untimely. The motion was heard and decided at the Special Term by a justice other than the one who appointed the commissioners of estimate and assessment in the matter hereinbefore referred .to. The order in that case and the one herein appealed from .were made on the same day, viz., September 26,1904, but the opinion of the learned Special Term on the other motion must have been handed down before, for it was adopted and followed on this motion in a memorandum which indicates that the court was influenced by comity rather than by conviction.

On the 3d day of April, 1903, the board of estimate and apportionment of the city of New York, pursuant to the authority conferred by section 970 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), duly directed the corporation counsel of the city to institute legal proceedings for the opening and extending of Avenue L, in the borough of Brooklyn, from the easterly side of Nostrand avenue to the westerly side of Flatbush avenue. In accordance with this direction the corporation counsel thereafter applied to the Supreme Court for an order appointing commissioners of estimate and assessment, and the order was granted against the appellant’s opposition. The appellant had meanwhile on May 3, 1904,. executed and delivered to the corporation counsel a deed or déeds, of conveyance ceding its title to the city in the laud owned by it in Avenue L on the line of the proposed improvement, with the necessary money for recording, accompanied by pertinent affidavits and an abstract of title and. searches in accordance with the provisions of section 992 of the city charter (as amd. supra and by Laws of 1904, chap. 370). .No question is raised as to the title or as to the sufficiency of the attempted transfer, but the corporation counsel refused to accept the title offered for the sole reason, as stated in the opposing affidavit, that “ he did not believe that, under the charter, he had any authority to accept same after the institution of proceedings to open the street, and that the proper method of procedure for the property owner wishing to deed land in the street after the institution of proceedings was to-apply to the Board of Estimate and Apportionment, under section 994 of the Greater New York Charter.” The order appealed from sanctions the act of the corporation counsel in rejecting the proffered title.

Section 992 of the charter (as amd. supra), so far as applicable to-this appeal, provides that the owner of lands within the lines of a. street in an entire block in extent may without compensation and at his own expense convey his title to the city free from incumbrances ; that upon the delivery of such conveyance to the corporation counsel with the money; affidavits, abstract and searches as already stated, it shall be the duty' of said corporation counsel to examine such conveyance and papers, and if the title is not rejected for good cause, he shall cause the conveyance to be duly recorded within sixty days; That thereupon the city shall become vested with the title to the same effect and extent as if- it had been acquired in a street opening proceeding, and that after the'making-and acceptance of such conveyance, no proceedings to open the lands so conveyed shall be taken or maintained, nor shall the lands fronting on the portion of the street so conveyed,"and extending to the center of -the block on either side, be chargeable with any portion of ■ the expense of opening the residue or any portion of the residue of such street, except the due and fair proportion of the awards that may be made for buildings. Section 994 of the- charter (as amd. by Laws of- 1901, chap. 466) provides that it shall be lawful for the city at any time or times, either before or after the appointment of commissioners, to agree with the owner for the cession of the land required of him, and for and about the compensation and recompense to be made to him, and for and about the allowance or sum to be paid by him in the premises.

No limit of time is prescribed in section 992,. and it seems arbitrary and unreasonable for the court to import into the .section a limitation which will require of the owner a cession of his land, as soon as it has been laid out as a street xipon the city map, and before it has-been decided to open the street, in order to make the cession effective. - No good reason appears why the owner should not be allowed to give his land to the city without compensation whenever the city, through its proper officers, shall determine that the time has arrived when public interest requires its use as á street, and before any expense has been incurred in the process of condemnation. ' If, however, a limit of time for the voluntary cession is to be imposed by construction, it should be ascertained from the context of the statute; and the precise provision of section 994 that an agreement for a cession with compensation to the owner could be made either before or after the- appointment of commissioners would seem to indicate that the legislative intent Was that at any time at least before such appointment the property owner would be at liberty to give to the city the land required for the public improvement. The difference between the two sections of thé charter relates chiefly to the question of recompense, in the one the land to be given away, and in the other to be sold on terms agreed upon by the parties. The view taken is strengthened to some extent by the provision of section 992, that after the voluntary cession and acceptance of the land, no proceedings for condemnation shall be taken or maintained, which seems significant of the suggestion that a proceeding may already have been taken at the time the land is voluntarily relinquished, and which, - because of such relinquishment, need no longer be maintained for the acquisition of the particular parcel concerned.

The order should be reversed and the motion granted.

Jenks, Rich and Miller, JJ., concurred; Bartlett, J., not voting.

Order reversed, .with ten dollars costs and disbursements, and motion granted, with costs.  