#### In re BOARD OF STREET OPENING AND IMPROVEMENT. In re ONE HUNDRED AND THIRTY-SIXTH ST.

(Supreme Court, General Term, First Department.

December 18, 1895.)

1. Municipal Corporations—New York Board op Street Opening—Powers.

Laws 1803, c. 70, designated in the preamble as an act to furnish a remedy for unsanitary conditions, among which was “narrow and confined streets,” provided (section 10, incorporated into Laws 1882, c. 410, § 94) that no new street should be laid out, except with the permission of the common council, and that abutting property owners might be compelled to remove buildings adjoining streets opened in violation of the act. *Held,*that such act was designed to prohibit individuals from opening streets across their property as a matter of private enterprise, and does not restrict the exclusive power conferred by section 955 of the consolidation act on the board of street opening and improvement in the matter of laying out streets. 33 N. Y. Supp. 594, affirmed.

3. Same—Procedure.

Laws 1882, c. 410 (Consolidation Act), § 956, as amended by Laws 1893, c. 660, provides that, when lands on which there are no buildings are taken for streets, the date when the title is to be acquired shall be fixed or specified in the petition of the board of street opening for the appointment of commissioners of estimate and assessment, but that where there are buildings the time fixed shall be “upon a day not less than six months from the date of the filing of such oath.” *Held,*that where a petition alleged that “they [petitioners] have accordingly directed that upon a date to be hereafter more fully specified, not less than six months after the filing of the oaths of the commissioners, * * * the title to each and every piece or parcel of land lying within the lines of said * * * street * * * shall be vested in the mayor, aldermen, and commonalty of the city of New York,” and such allegation was inserted in the order appointing commissioners, it was a full compliance with the law.

Appeal from special term, New York county.

Application by the board of street opening and improvement relative to the opening of 136th street, between Boulevard and Amsterdam avenue. From an order appointing commissioners of estimate and assessment (33 N. Y. Supp. 594), Andrew J. Connick appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

James A. Deering, for appellant.

Henry De Forest Baldwin, for respondent city of New York.

FOLLETT, J.

The principal question involved in this appeal is whether the “board of street opening and improvement” is authorized by section 955 of the consolidation act to lay out new streets without the approbation and permission of the common council, granted pursuant to section 94 of that act. . Upon this question the reasoning and conclusion of the learned judge at special term is satisfactory, and we are quite willing to adopt his opinion on this question.

The learned counsel for the appellant urges that it does not appear in the application for the appointment of commissioners that the corporation counsel had been requested by the board of street opening and improvement to institute these proceedings.

*312At folio 22 of the petition we find the following allegation:

> “That they [the petitioners] have duly requested the counsel to the corporation to take proceedings in the name of the mayor, aldermen, and commonalty of said city to acquire title for the use of the public to the lands required for the opening and extending of One Hundred and Thirty-Sixth street (although not yet named by proper authority), from Amsterdam avenue to the Boulevard, in the Twelfth ward of the city of New York.”

At folio 29 of the petition is the following allegation:

> “And your petitioners further show that on or about the 2d day of January, 1895, they requested the counsel to the corporation, in writing, to take proceedings in the name of the mayor, aldermen, and commonalty of the city of New York to acquire title for the use of the public to the land required for the opening and extending of One Hundred and Thirty-Sixth street (although not yet named by proper authority), from Amsterdam avenue to the Boulevard, in the Twelfth ward of the city of New York, and for that purpose to make application to the supreme court in the First judicial district for the appointment of commissioners of estimate and assessment in the manner now provided by law.”

These allegations seem to us quite sufficient.

It is also urged that the proceedings are irregular because a “fixed or specified time” is not named when the city shall become seised in fee of the lands sought to be acquired.

Section 956 of the consolidation act, as amended by chapter 660 of the Laws of 1893, provides that, when lands are taken upon which there are no buildings, the date when the title is to be acquired shall be fixed and specified; but it provides that, where there are buildings upon the lands to be acquired, the time fixed shall be “upon a day not less than six months from the date of the filing of such oath” (referring to the oaths of the commissioners of estimate and assessment).

At folio 25 of the petition we find the following allegation:

> “That they [the petitioners] have accordingly directed that upon a date to be hereafter more fully specified, not less than six months after the filing of the oaths of the commissioners of estimate and assessment who may be appointed by the supreme court in proceedings for the acquisition of title to said street, the title to each and every piece or parcel of land lying within the lines of said One Hundred and Thirty-Sixth street (although not yet named by proper authority), from Amsterdam avenue to the Boulevard, in Twelfth ward of the city of New York, so to be opened, and so required, and hereinbefore particularly described and set forth, shall be vested in the mayor, aldermen, and commonalty of the city of New York.”

At folio 105 the allegation above quoted is inserted in the order appointing commissioners. This seems to be a complete compliance with the provisions of the statute.

The order should be affirmed, with costs. All concur.