#### The City of Kingston, Plaintiff, *v.*Matilda O. Terry et al., Defendants.

(Supreme Court, Ulster Special Term,

September, 1898.)

1. Municipal corporations — *A*charter requirement that a street pro- ' ceeding must' be concluded in sixty days is directory merely — Estoppel.

The provisions of the charter of the city of Kingston (Laws of 1896, chap. 747, §§ 144, 145), directing that the entire proceeding of taking land for a street shall be completed by the city, and the certificate of assessment be filed with the city clerk, within sixty days after the ' appointment of the commissioners, is directory merely; and, although the time fixed, has been exceeded1, parties, who have given proof four months after the appointment of the commissioners and who thereafter have allowed the official report and award to slumber for a year, cannot successfully raise, for the first time on appeal, the objection of delay.

2. Same — Award.

Such an award will be set aside only for an error of law or the adoption of an erroneous principle.

*617Application to confirm the report of commissioners appointed to ascertain the compensation to he made to owners of property to be taken for the public use in opening and extending Orchard street, in the city of Kingston.

John W. Searing, corporation counsel, for plaintiff.

Howard Chipp, Amos Van Etten, Frederick Stephan, Jr., arid John G. Van Etten, for property owners.

Clearwater, J.

At the Ulster Special Term of the 1st day of August, 1896, commissioners were appointed to ascertain the compensation to be made for property to be taken for the public use in opening and extending Orchard street. The commissioners took the constitutional oath of office, gave the notice required by the city charter and began their hearings on the 31st day of August, following. The testimony was closed on the 17th day of December of that year, and briefs submitted the 26th of that month.

The commissioners made their report on the 4th day of February, 1897, by which they awarded Mary I. McEntee, $750; Matilda O. Terry, $725; John McEntee, $550, and to the other property owners, smaller amounts. They delivered their report to the common council of the city, and no further action was taken regarding it until the 11th day of May, 1898, when the corporation counsel served a copy and a notice of motion for its confirmation for the Ulster Special Term of the 21st of May.

Upon the motion coming on to be heard, exceptions and objections were filed, the principal being:

1. That the award was not signed and returned to the common council within sixty days after the appointment of the commissioners, the charter requiring that all proceedings, including the final assessment of damages, be had within that time.

2. That the commissioners erroneously admitted irrelevant and incompetent evidence over objections duly made and erroneously excluded competent testimony duly offered. '

3. That the award is inadequate.

The charter of the city provides that whenever the common council shall determine to lay out, alter, widen, straighten, extend or open any street and to take and appropriate land for the same they shall give notice by publication in the official newspapers of the city, which shall specify in general terms the improvements to *618be made, and that the owners of the property to be taken may file their claims for damages. That if claims be filed the common council shall proceed to acquire the lands pursuant to the provisions of the Condemnation Law. That when the commissioners shall have ascertained the damages which the owners of the property filing claims sustain, after making due allowance for any benefit to be derived therefrom and their report thereon to the court shall have been confirmed, they shall proceed to determine the district immediately benefited by the improvement, and' apportion the damages determined by them, and the costs and- expenses of the . proceeding as fixed by the court in the order confirming their report ■ against the property benefited, and that the entire proceeding shall be completed, and the certificate of assessment filed with the city' clerk within sixty days after the appointment of the commissioners. Laws of 1896, chap. 747, §§ 144, 145.

While the charter makes it the duty of the city to complete the proceedings within sixty days, its neglect should not be allowed to deprive the public of the benefit of a valuable improvement unless there be some provision that the proceeding shall be void, in case of failure to comply with its direction as to time. The settled rule of construction requires no such serious consequence to be attached to the failure of a legal duty of this description unless the statute expressly prescribes a penalty or imposes a forfeiture for noncompliance with its provisions. The paramount object of the proceeding was the extension of the highway system of the city, and it can hardly have been intended by the legislature that the public should suffer, if the.'officers whose duty it was to proceed neglected to do so within the time mentioned; inasmuch as no such result was declared to be the consequence of their omission; and as the legislature imposed no such restriction in granting the charter, it is doubtful if the courts have the right to add it. The existence or absence of such provisions, it has long been held, are some of the *indicia*by which the courts have established wise rules for determining the intention of the legislature in the enactment of laws, and statutes are held to be directory or declaratory, according to the presence or the want of certain indications of legislative intent. These rules have been so long in practice, that legislative bodies must be presumed to have enacted statutes and granted charters with reference to them, as it is in their power to use language so explicit that statutes must be considered , mandatory, ...thereby excluding the power of the court to construe them as declaratory.

*619This rule does not subvert, but carries into effect the intention of the lawgiver as it is to be gathered from the phraseology of the statute. A strict and literal adherence to the letter and form of an act in minor or nonessential particulars, will often defeat a remedy or destroy a right, which it was the principal intention of the legislature to create or proride. Where, therefore, the statute directs, as does the charter of Kingston, an act .to be done within a certain time, and a strict compliance as to time does not appear to be essem tial, the proceeding may, where the thing has been done, still be held valid though the time has been exceeded, for, under such circumstances, the statute may be said to be directory and not manda- * tory. People v. Supervisors of Ulster County, 34 N. Y. 268; Stevenson v. Mayor, 3 Thomp. & Cook, 133; People v. Cook, 4 Seld. 68; Marchant v. Langworthy, 6 Hill, 646; Thomas v. Clapp, 20 Barb. 165; Pond v. Negus, 3 Mass. 230.

Had these claimants, after the expiration of the sixty-day limit prescribed by the charter, declined to proceed, or had they applied to ,the court to suppress the report of the commission, and adjudge the proceeding abandoned because of the delay, the situation might possibly be different. They did not, however, do this, but went on with their proof before the commissioners after the expiration of four months from the order appointing them, presumably in ;the hope that the award would be satisfactory. Having failed in this expectation, they permit the report to slumber a year, and, now for the first, raise the objection of delay.

While it must be confessed that the entire proceeding has been conducted with extreme deliberation, I am unable to see that the claimants have in any way been prejudiced by the leisurely manner in which it has progressed, nor do I discover the omission of any step, the taking of which would have further tended to their protection, and, therefore, do not think that the delay is a sufficient reason for denying the application to confirm.

It is urged that the commissioners erred in erroneously admitting evidence which was irrelevant and incompetent, and in excluding competent testimony against the objection of the property Owners'. A careful examination of the testimohy fails to convince me that this criticism is well founded. The .commissioners, seem to have proceeded with care, to have been liberal in the admission of testimony tending to show the loss sustained by the owners of the property affected by the proposed extension and to have been cautious in excluding testimony offered upon that branch of the proceeding, *620and considering the multitude and character of the objections upon which they were called upon to pass, their decisions in receiving and excluding testimony are so nearly in accord with my own view of the course they should have pursued, as to render discussion unnecessary. They committed no error which requires _the rejection of .their report because of incorrect rulings during the trial.

It is further objected that the award, especially to Mrs. Terry, is inadequate. The charter, as has been stated, provides that the commissioners, in awarding compensation, shall make due allowance for any benefit to be derived by the property owners from the proposed improvement. Much testimony was given, and the awards are far less than the sums which, in the opinion of most of the witnesses, would compensate for the loss sustained. Commissioners, however, are presumed to be selected with special reference to their fitness for the position, and the duties which they are expected to discharge, and such experience as they have may be brought to their aid in the performance of their office. They are to be guided largely by their own judgment as they view the premises, and can better estimate the amount of damage sustained, than can a court sitting in review of .their action. It would, indeed, be an artless commission whose members accepted, without qualification, the opinion of witnesses if it did violence to their own dispassionate judgment after a view of the property, and a careful consideration of all the questions involved.. For the court to arbitrarily set aside their award unless some error of law is plainly manifest or it be apparent they adopted an erroneous principle in reaching their conclusion would be to usurp the functions which the statute confers upon them, rather than a judicial exercise of its own discretionary power, and it ought not to substitute its own judgment for theirs even if it differs from them. . '

This is, and long has been the well-settled rule. Matter of Public Parks, 53 Hun, 280; Matter of Staten Island Rapid Transit Co., 47 Hun, 396; Matter of Central Park, 51 Barb. 277; In re Main Street, 25 N. Y. Supp. 267; In re William *&*Anthony Streets, 19 Wend. 768; Matter of Pearl Street, 19 id. 651; Matter of John *&*Cherry Streets, id. 659; In re Harman Street, 16 Johns. 231; Matter of Furman Street, 17 Wend. 649; Matter of Carpenter, 11 Misc. Rep. 690.

I can discover no sufficient legal reason for annulling the report, and the motion to confirm it is, therefore, granted.

Motion granted.