#### In the Matter of the Application of the City of New York Relative to Acquiring Title, etc., for the Opening and Extending of Rosebank Avenue from South Side Boulevard to Broad Street, etc. The City of New York, Appellant; The People of the State of New York, Respondent.

Second Department,

May 8, 1914.

Eminent domain — authority of city of Hew York under charter to con demn lands held by State for public purposes — effect of prior special act.

The Greater Hew York charter does not confer power upon the city to exercise its general right of condemnation against property of the State devoted to a public purpose and not merely held by it as a proprietor. Hence, lands owned by the State and occupied by a public charitable corporation cannot be acquired by the city for street purposes.

The charter provides ah entire scheme for the condemnation of such lands, notwithstanding a prior special act authorizing a village, now a part of the city of Hew York, to extend or widen its streets through State lands without compensation to the State.

Appeal by the City of New York 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 Richmond on the 10th day of December, 1918.

*Patrick S. MacDwyer [Joel J. Squier*and *Frank L. Polk*with him on the brief], for the appellant.

*Robert P.*Beyer, *Deputy Attorney-General [Thomas Carmody,*Attorney-General, with him, on the brief], for the respondent.

Jenks, P. J.:

The city of New York appeals from an order of vacation of its proceedings to acquire title to certain lands, for street purposes in the borough of Richmond in so far as the proceedings affect lands whose title is in the State of New York. In 1911 the board of estimate and apportionment resolved pursuant to the charter to acquire title to lands and premises required to open and to extend Rosebank avenue, a public street in said borough. The learned Special Term was of opinion *333that the charter did not confer the power upon the city to exercise its general right of eminent domain against the property of the State devoted to a public purpose. I am in accord with this view, The statutory scheme.under which the proceedings are taken is in general terms, and there is no provision that includes the State within its expressions. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 970, as amd. by Laws of 1910, chap. 336.)* I think the more logical and the wiser view is that such a statute does not confer authority to take the lands of the State which are held by it for a public use. *(Matter of City of Utica,*73 Hun, 256; *Inhabitants of Marblehead*v. *County Commissioners of Essex,*5 Gray, 451; Lewis Em. Dom. [3d ed.] § 414, and cases cited; Elliott Roads & Streets [2d ed.], §213.) There is a distinction to be made between lands held for the public use and lands held as a proprietor. (Elliott Roads & Streets, *supra,*n. 1.) The lands were acquired originally pursuant to certain statutes, which contemplated the relief of mariners. But thereafter such lands, excepting six acres, were sold by the State Comptroller pursuant to chapter 362 of the Laws of 1882. That act directed also that the seamen’s retreat should be closed on July 31, 1882, but it specifically excepted the grounds and buildings occupied by the Mariners’ Family Asylum, which are the premises now occupied by said asylum and which are directly affected by the present scheme of improvement. The Mariners’ Family Industrial Society of the Port of New York was incorporated in April, 1849, under a special act (Chap. 293), with the express purpose of aiding “the destitute families of seamen by providing work at a fair remuneration for the female members of said families and to relieve the necessities of such as are incapable of labor, including their widows and orphans.” This corporation is now in the possession of the Mariners’ Family Asylum. I think that the ownership of the State is for public purposes as distinguished from ownership that is proprietary. In other words, the State owns these lands as if for public charitable purposes. *(Kent*v. *Dunham,*142 Mass. 216, 217; *Bullard*v. *Chandler,*149 id. 532; *Burd Orphan Asylum*v. *School District,*90 Penn. St. 21; *Saltonstall*v. *Sanders,*11 Allen, 446.)

*334But it is insisted that the power is in the city of New York pursuant to chapter 514 of the Laws of 1884, an isolated statute that reads as follows: “Section 1. In opening, extending or widening any street or avenue in the village of Edgewater, it shall be lawful for the trustees of said village and they are hereby authorized to open, extend or widen the same through the lands of the People of the State within the boundaries of said village, provided, however, that no assessment for benefits shall be imposed upon such lands.” The village of Edgewater became by consolidation a part of the city of New York pursuant to chapter 378 of the Laws of 1897, and its government as a village thereby ceased. I am inclined to the view that the effect of this statute was to authorize the then village of Edge-water to extend or widen any street or avenue through such property without compensation to the State. See the remark of the chancellor in *Pennsylvania R. R. Co.*v. *New York & Long Branch R. R. Co.*(23 N. J. Eq. 157, 160): “When the State authorizes a corporation or an individual to build roads or bridges upon its property, as the duty to be performed is that of the sovereign delegated to a citizen, it implies the right to proceed without compensation.” (Case cited, *Attorney-General ex rel. Easton*v. *New York & Long Branch R. R. Co.,*9 C. E. Green, 53. See, also, *Davis*v. *East Tennessee & Georgia R. R. Co.,*1 Sneed [Tenn.], 94.) But I am of opinion that this statute cannot be invoked 'in this proceeding. In the absence of any proof to the contrary we must presume that the authority in the then village of Edgewater was to take only an easement for street purposes. *(Paige*v. *Schenectady Railway Co.,*178 N. Y. 102, 111, and cases cited.) And no implication is permissible that the statute granted more than was necessary to satisfy the language and object thereof. *(Bradley*v. *Crane,*201 N. Y. 14, 25.) But as the purpose of this proceeding is to take a fee, in which event there would be no limitation upon the municipality’s ownership (N*ew York Central & H. R. R. R. Co.*v. *City of Buffalo,*200 N. Y. 120), hence, even if the statute was now available to, the city of New York, it would not warrant this proceeding.

Further, I think that this statute did not survive, but that the charter provides an entire scheme for the condemnation of *335such lands, which scheme is complete and exclusive in itself, save as other provisions of law may be expressly embodied in it. (Greater N. Y. Charter [Laws of 1901, chap. 466], §§ 442, 970, as amd. by Laws of 1903, chap. 409, and Laws of 1910, chap. 336.* See Endl. Interp. Stat. §§ 200, 201, 202.)

The order is affirmed, with ten dollars costs and disbursements.

Burr, Carr, Stapleton and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

*

 Since amd. by Laws of 1913, chap. 329.— [Rep.

*

 Since amd. by Laws of 1913, chap. 329.— [Rep.