The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-30
Supreme COurt-Special Term.
Before Bon. Judge Roosevelt.


Dillon Corporation Counsel to point five commission
under the paa cd July a. 1853 Mr. Chas OConor
appear hs porAton this proceeding,
In opposition TO the application, having been employed
Common Council En Judge samuel Bssrdsisy and Mr..
Henry Hilton appeared counsel for kessrs Schermsr-
horn and others Of the woods and opposed TO
their being tai park Mr. James K Whiting appear
for party interested After the order Of proceeding
had been settled, Mr.. Hilton read in opposition :
cd to be taken are worth a sum much exceeding .
MILL Of dollars second-two sdavs OF old establish
90 sex .nas Inc soc. when inc -, hs s
thirdan affidavit that portion Of these lands sxcseding
in value belongs to nfAnts ourtha resolution of
the Common Council recing that this law passed in
direct opposition their wishes and not asked for BY tho
inhabitants of the city; that 1t is unprecedented mas
much the cost of the whole park not upon
the property benefited by it, but upon the city treasury
alone For these, and other it dirt the
Elk Judge Beardsley then rose and, in behalf Of the
he said that the act under which this
application was peculiar 1t directs be made
at special term and by giving appeal throws very
important the court And there are other fes
lures about equally peculiar and remarkable; it was
intended and does invest this court with discretionary
Judge of the fitness and propriey of taking this
land 1t also pr svides for taking this property and
the owners against their will and thrusting it
into the corporation against its will. Gene ally i'm.
a Of h are e cna S $ a sSs
expense being by this act thrown upon the city gen
orally 1t is also usual to make in provements Of this
this case not only DO the -nsrs oppose It but the city
speaking through their corporation, also opposed to IT,
the will of the without paying 70, it But here BY
this act th million of dollars OF property pro-
posed 70 be taken seyng ns 70 .TI " rroy
vor, and there IS ground for the appointment of
missoners FjrstTbe itself did intend that these
lanes should be taken for park. 1t merely said they
might benot that they should be. There lie merely
authority for Going it provided the corporation thinks it
power determine that these lands sha be- TAKEN but
here they have not done mode is merely authorized
the exercise of the power has been committed this
court and The Conmon Council, although there is
doubt that the law Is mandatory the Corporation
Counel-mperative upon him the Legislature having said
he must make this application the Com
Council says he must not Yet it confers but
authority upon the court which is to determine whether
the application shall be granted In this respect the
entirely Harmonious ia deyoviDg different duty upon the
Corporation Counsel than does upon the court there
being nothing in it imperative upon the court the
poraion. 1t win be that, if upon this application
commissioners should be appointed, AMI make their
port the tide Of the owHsr wos pass, ana that,
There provision requiring the corpor to issue
the stock to raise the WI erewith to pay for TINS
land until they take the actual possession and not TIL
title passes to then immediately upon the conHrma
ton report True, the law permits them to take
these lands to day. without appraisems yet
until they do take them they not in any way Obliged
to pay. Section says:-"The said Mayor Aldermen,
and Commonay Of the city Of New York shall after they
shall possession Of said lands, (proved the
said report shall be then confirmed, and II the same shall
not be then confirmed then after shall be confirmed by
this and section it entirely clear that the taking
session voluntary act the corporation does take
possession under section the then have right
Of action. Now tn ming to the first section it will
be that although it is mandatory on the Corporation
court are 50 to consrue it, principle being that when
different words ussd in the section the court
will presume the legislature meant to express different
| vs. Bolton; g. Coke Rep u.s. Elcrick's case.l And
although words Of permission authority IN some
deemed mandatory yet that SO only where some
third party has claim de jure that the power be
ercis.d where the public interest requires the per-
Roger Cowen, 1885, los, s. G.. Hill, els, Mayor vs.
But the Legislature has deter mined that
the thing shall be DONE but has left it to the court
said that this mutt be done; nowhere said the
must take possession nowhere said that the
corporation shall pay until they do take session;
language merely permissive throughout, enjoining
duty upon the court and corporation if they think it, To
illustrate the idea that there Is nothing here compulsory
on the court corporation to bring this matter
up, suppose Mr. Dillon, the Corporation Counsel had
1a ansam ms to lin Again the bin -
tabl hirg tbs Central Park passed the same cay with
this On reference to that it will be seen what was th
int nton Of ths Legislature There they declared tina
certain lands by them described should be public park
Here they permit the corporation and the court to say
tended to leave it Passing BY the question to whe
Their is compulsory upon the court to appoint commits
II is said ont of oor that the reEson whv this act was
in it's present shape because certain
adjoining wanted their lands benefited by throwing the
who burdt of the expense of this park the city
orally. Whether this is is not the true reason there
certainly act similar to hs-which throws
the whole expense of this park upon the property down
own-op that part OF the city which is valuable
and least benefited Sections and IL, provides fol
the payment BY tax upon all the real and personal pro
1t will be seen that this ast seeks to annul agree
nents: leases, &C., merely upon the commissioners
assessing not paying. the value Of the lessees
interest This Fart Of the act is in direct conflict will
the constitution The Legislature has such power
here attempted TO be e1erosed-[Const U. s., art.
10 Secondly this act the land is taken withou
awarding jut compensation. The constitution Of 1916
art l. provides that, NO person snail be deprve
shall private property be TAX. for public wthou
just compensation" And section says When pri
vAte property shall be taken for any pub use the
pensstion to be made therefor when such compensation
Is not made by the State, shall be ascersined BY jury
court Of record shall be prescribed BY law" Nov,
the opposing counsel contend that under the old cons
penson preeedns we vii admit that Judges
SO, and sme say II the provision for compensation
ample that Is sufficient and some say you must frs
court TO examine for itself The cases will be fount
collected in Kent Com, 9th Ed, 800, 34o (note.
And should the court to the conclusion that pay
ment must precede the taking then beyond all dou bt thu
act is uncor stitutional, insisting that undsr eoor
of present constitution it is clearly INTENDED
that the payment must in all precede the taking
Indeed it would seem that as just principle the
which, if these lands are to be taken will enable thu
owners to get their money without waiting until stocl
of the kind proposed can be sold at par; and al
opportunity is here affor led to apply to this ney
provision Of the constitution a principle just an
reasonable. But II these lands be taken withou
proceeding it by payment, then the decisions al
that hee must b. ample and certain provision
. full and adequate compen 'aticn. us Wend 49, II
Bloodgcod vs. M. H r. R.; 8 Paige, As, Beekman va
Saratoga r. R. ; Baldwin c. c. R., POS, Bouaparte VS.
The Camden and Amboy H. R.; 26 Wend 49s Lyon W.
Gerow. The language is that the provision must b,
ample an certain In this there is ample pro
vrion. Should the stock be not more than million Of
dollars, but one per cent. OF 1: ($l0ooo) would
H. h1a l1u Uni1a thA fntar To- n.
five per cent. There is no o her resource for
these owners ard they can't bs paid until th.
be sod at par The court easily to conclusion
TO whether a money lender wou: be wiling part
with bis utnsy 70. that kind OF security and VII her
that Is IN ample provision for heas owners Suppose
you sue the corpora ion where be found pery
pay million Of dolar2 But part all this the act
iisef must provide ample and certain remedy Chis
clearly does n IN addition then will be produc ID
aneavit showing that all the corporation property is
petged TO the Sinking Fund security for than It's
whole value. But If tni, ST. elk should be ample