The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-12-04
The Canal and Walker Streets Inaprcvc-
ment.
SUPREME COURT-SPECIAL TERM.


Decision by Hon. Judge Roosevelt.
DEC. 3.M The matter of tcidentng nd crteHQing
| Canal and Walser STREETS Two motions are mad,
In thls case; one to confirm the commissioners re
portthe other TO stay all further proceedings upoI
1T. Large and numerous interests are at stake and
as consequence, much fee Ting, not al ways perfectly
amlcaoe, has been excited. To the parties, 1t is q
question Of million Of dollars; to the city treasury
on about nifty or sixty thousand. IL the Improvement
goes on, the treasury will be charged with heavy
assessment; if crested the buroe on the treasury
in frnitless expenses, will be equally great. In the
former case however the city will have received il
is said, an equivalent benefit in the latter, (uness
paying lawyers and commissioners be benefcial) nc
benefit whatever. The act OF April 20, 1889, pro
vides that it. upon hearing the motion Tor the con6r
nation of the commissioner report, persons who
appear by the report TO be Interested either by as
sessnent or award for damages, to the lrount OF
majority in amount) of the whole assessments and
awards shall appear and object to further eeedings
upon the said report the court shall order the same
to be discontinued, and the shall then sefor5h
be discontinued. On this language two questions
arise first, wbo the persons entitled to object
AID second bow or by what rule II the fact of there
being majority in amount to be determined. have
already had occasion to examine the first question:
and have decided that owners whose names do not
appear ON the report, but the amount OF whose
awards or assessmer Is as unknown ownersN does
appear, are entitled upon proper proof Of ownership
to object to the continuance OF the proceeding. As
to the second question, it il clear that the right to
object is not confined to persons on whom assess
ments are imposed, but extends to those to whom
awards are made. In other words, those who pay
may veto the proceeding, as paying too much and
those VINO receive, as receiving too little the one
because the Commissioners estimate" OF benefit ia
too high, and the other because the Commissioners
estin ate" Of damage Is too low. Such, no doubt,
are the reasons why majority in interest, before
confirmation, may demand dscontinuance of the
proceeding. But the Law, as it now stands, re-
quires no reason. to be assigned If the requisite
amount can be obtained the veto is absolute. Stat
pro ratsone rotm.tas. Even the very persons at
whose, instance the whole expense was incurred
may themselves be the obJectors and the city,
drawn in by their invitation, or perhaps urgent
solicitation be left to foot tae BILL What then as
appears by the report, is the amount OF the assess
agree this point the difference between them be-
log only $40. shall take the aggregate therefore,
as 81 065 05s, the half Of which is $527 529 and any
sun over that is Of course majority But it. is said
have unlaw wfuly Incorporated in the amount certain
costs OF former proceedings, put down at $2S l15;
and that il this sum were deducted the requisite ma
jority would be reduced to $5l3,4 Were this
yection admitted it would not vary the final result
But the proper answer to the objection is that it
comes too late BY the 1S9th section of the Street
Law OF 1878, it is provided that all reasonable and
necessary expenses and disbursements shall be in
| cluded In the assessment. And by the amending
act of 1889 it is provided that costs charges,
&c. shall be paid or allowed unless the same shall be
taxed by the Coult after full notice. The taxation
thus made cann0s be reviewed c0llateraly. 1t
Is conclusive, therefore, on the present motion.
Taking, however, either Of the above sums as the
standard do not find, on going over the calculations
submitted, that persons who appear by the report
to be interested to thu amount Of majority" have
objected to all further proceedings am not autho
rzed therefore, on the mere Uolo of the obectors
to order discontinuauce. Being in the minority,
better reasons than mere will and pleasure; and their
counsel have accordingly done So It is contended
then, among other difficufQes suggested, that the
resolution Of the Common Council to amend and
oh fha mid .f No1I md 10
it to East Broadway was Illegal; that commissioners
having been appointed by the Court, under tho reso
luton as originally adopted the whole subject had
passed from the jurisdiction Of the Common Council
bic mistake. This objection if at any time available,
cannot now be raised unless its character be such
to divert the jurisdiction Of the Court and render any
order it mig hit make null and void What, then, are
the facts cut of which it arises? The proposed i'm.
prOvemeLt, described in the gina resolution Of
lSf8, was Objectionable in two particulars First at
the tasterly end although intended to connect with
Rutgers street. as continuous avenue OF seventy five
feet in width. owing to blunder of the surveyors it
failed to do go, leaving projection which bothun
slightly and inconveDiens Second at the westerly end
it unnecessarily made triangular public place be-
tween Centre Walker Orange aDdC Cana streets there
by greatyenhancng the cost, withouta corresponding
increase in HE benefit of the improvement. When
the report Of the Commissioners, made under the
original resolution, came before me about eighteen
months ago. these and other defects were discovered
in the proceeding. With the appreciation seemingly
Of all parties, the report was referred back for
iection; or more properly speaking, was referred to
rev commissioners, appointed by the court at the
instance and with the concurrence of every interest.
At this stage OF the matter the corporation, by the
terms of the law, had the absolute right to dscon-
tnue the existing proceeding and to inst ute an en-
tireJy new One On that point there can be no dis
pute. Instead Of doing SO, however, in order to
avoid an unnecessary multiplication of expense, they
simply amended their original resolution and directed
their counsel to take the necessary steps to amend
nj hn Tho nylu
gave the required legal notice Of an intended app
cation for the appointment of commissioners to carry
out the proposed improvement as amended; notice
of the same duration, and given in the same manner
in all respects as if it had been an original proceed
ing. To save expense, and for greater convenience,
by orser of the court, the same commissioners were
appointed, and without objection from any quarter.
Nor were any steps taken by any one to vacate the
order thus made, or in any manner to test its
validity, or to arrest its execution. On the con-
trary, the parties appeared before the commits
soners thus appointed, contending, some Of them,
that they were assessed too much, and others
OF them that they we're awarded too little, and
exercising, U may say, insisting on,) oil their
legal rights and all their just influence in shaping
and adjusting the plan ofthe report. And now after
an additional expense of between five and ten thou
sand dollars has been incurred in an endeavor to
make the measure satisfactory, and to correct all,
even OF its minor Details shall the will Of the
jorty be defeated the whole proceeding overtime
| and the whole cost Of the abortion east upon the
city treasury upon technical reasoning no way con-
nectcd as iconceive, with any question of abstract
justice or injustice, and refined to be insppre
ciabe without the aid Of pro tessional microscope
In the case of Doughty against Hope the Court of
Appeals am aware, did hold that these assessment
laws were to be strictly construed but shey did not
hold, hor, as exponents of the laws OF business
community did they, as conceive, intend to hold,
TINT In the prosecution Of voyage in search of un
known difficulties, common sense, in these cases,
was to be entirely thrown overheard What possible
object, except great increase of expense was to
be gained by doubling the commissioners and
doubling the proceedings? The parties 1t is said,
who are newly brought in by the change 10 the i'm
small part) of the previously incurred expense. But
are they net also equally credited with proper
tonate share Of the previously performed service
For aughtthat appcars-indeed Think 1t clearly ap
pears-their share Of the costs and charges Of the
combine proceeding less than would have been
the whole amount likely to be Incurred by separate
proc ;ediDg entirely their own At all events,
this point il there anything 10 uBge, should
have bpeu nrpsented the Taxation Objectionable