#### THE LONG ISLAND RAILROAD COMPANY, Appellant, *v.*JAMES BENNETT and others, Commissioners of Highways, etc., and others, Respondents.

*Chap.*287 *o/1874*— constitutionality *erf*— Bight *of eminent domain*— notice *to persons affected, hy wrnxise of*— Damages — *measure of*— assessment *of*— wpon *property*

Appeal from a judgment at Special Term in favor of the defendants.

The action was brought to restrain the defendants from opening and grading Eront street, between West First and West Second streets, in Long Island City, and from assessing upon or collecting from the property or premises of the plaintiff the damages or *92expenses of opening said street, and to bave tbe act of tbe legislature under wbicb tbe defendants claim authority to act, viz., an act entitled “An act to provide for tbe opening of Front street, in Long Island City, Queens county,” passed April 29, 1874, and tbe acts of tbe defendants thereunder declared unconstitutional and void, and said defendants restrained from exercising any authority sought to be conferred by said act.

This act, by its terms, authorizes tbe commissioners of highways of Long Island City to open said street, authorizes tbe application for appointment of commissioners to assess tbe damages, and directs tbe damages and expenses of grading to be assessed upon and collected from tbe lands adjoining benefited thereby, and paid out to tbe parties entitled thereto.

Tbe court at General Term said: “ Tbe proceedings, in this case, to take tbe land are .expressly authorized by chapter 287 of tbe Laws of 1874:, but tbe validity of that statute is assailed on tbe ground that it violates tbe Constitution; because, first, it contains no provision requiring notice to be given of tbe application for tbe appointment of commissioners to appraise tbe land taken for tbe improvement, and to impose tbe assessment for tbe expense thereof; second, tbe area of assessment is limited to tbe lands adjoining benefited by tbe improvement, and tbe amount of tbe assessment is not restricted to tbe amount of benefit which said lands will derive from tbe improvement ; and third, it does not provide, with sufficient certainty, for tbe payment of tbe compensation to be awarded for tbe property taken.

*We*think neither of these objections is well taken. The Constitution does not require notice of tbe application for tbe appointment of commissioners. It appears, however, that notice was given by publication and tbe plaintiff appeared. That was a waiver of tbe objection and rendered it unavailing. *(Dyokmcm*v. *The Mayor,*5 N. Y., 441; *People*v. *Qwigg,*59 id., 83.)

Tbe court below has found that tbe plaintiffs are tbe sole owners of tbe land adjoining tbe street to be opened, and tbe statute cited provides that tbe damages wbicb they will sustain by-tbe taking of their land for tbe street, together with tbe expense of grading tbe street, shall be assessed upon such adjoining lands. This, I agree, is a bard mode of making compensation; but, if lawful, it must be *93certain and adequate. That it is lawful seems to be settled in this State. *(Immgston*v. *The*Mayor, 8 Wend., 85.) In that case it was beld, by tbe late Court for the Correction of Errors, that the benefit, accruing to a person whose land was taken for a street, might be set off against the loss or damage sustained by him by the taking of his property; and, if equal to the damage or loss, it was a just compensation for the property taken to the extent of such benefit. In this case the plaintiff’s damages must be so much less than the benefit which they will derive from the improvement, as the amount it will cost to grade the street.”

Vcmderpoel, *Oreen <& Ovmmg,*for the appellant. *Edga/r M. Cullen,*for the respondents.

Opinion by

Gilbert, J.

Barnard, P. J., and Dyehan, J., concurred.

Judgment affirmed, with costs.