The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-01-13
TIE BROADWAY WIDENING.
The Supreme Court, General Term, Affirms the
Decision Of Judge cardozo Appointing New
Commissioners Grounds OF the Deci-
sion as Set Forth in tho
Opinion Of Judge Learned
New Assessments.


way OF settling the difficulty to the assessments
and awards for carrying out the Broadway WIDEN
Ing project. The report Of the old commissioners,
IL will be remembered, was made the subject OF the
special attention OF last winters Legislature, and
that in consequence Ct the numerous complaints
made an act was passed directing inquiry into the
matter by the Supreme Court ana en-
poweriug the Court, II 1t thought public and
private interests demanded It, TO set aside the Old
report and direct new one TO be made. Applca-
ton was made under this act to Judge Cardozo
who did set aside the Old report and appointed new
commissioners. An appeal was taken from this
order to this Court decision upon this appeal
was rendered yesterday, Judge Learned giving the
opinion OF the Court Affirming Judge Cardozo's de-
cision, ana Judge Barnard dissenting. We give
below, In tull
This Is an appeal by J. Watts Depeyster, from an
order made at Special Term the Sd OF April, 1871
ceedlngs entered on the 2sth OF December 1870 and
appointing new commissioners. The Special Term
ity and illegal acts in these proceedings and that the
assessments Tor benefits and the awards for dam
IS Ss Ut New
ne sSs Term nS s the sses sSSq +
TACT. The learned Judge who held that term has
upon hd e pe % Ss
raised here by the appellant seem TO be in substance
only Two me first Is that, as the Court below
| found the assessments and awards unfair, &C., as
to the city, and made no findings as to their claims
respect to other persons he should, OF the most
| But In vacating the order generally and referring
tine matter to new commissions. the Court seems to
4, chapter 81, Senate Laws, is7i.l And now, ' as
| Stunning that It were within the discretion oil the
special Term to vacate the order ana conjunction
IN part stlll there may have been (and we are In.
| clined 10 think that there was) good reasons tor
vacatlng 1t altogether We ought not to review the
| order IN that reSpect
The second point is undoubtedly the important
one The appellant insists that the act OF the Legls-
| aIure Senate Laws 1871, chapter 5D by authority
OF which this motion was made ana this
was granted ed WAS OF
Without due process Of law. IN raising this ques.
which was set aslds. The act Of 1869, chapter 500
authorizes the Commissioners OF the Central Park
TO lay out that part OF Broadway, between Thirty
fourth and Flttynmth streets, ana TO locate and
establish the easterly and westerly lines thereof SO
certain other parts OF the street. They to file
certificates and maps defining the lines aud naming
fling OF such certificates and maps Is to be final
anu conclusive as to the extent and boundaries or
Hs Ar Se g oe fso Of
CITY, Is directed 10 acquire title TO the lana required,
and for that purpose TO apply TO the Supreme Court
at Special Term for the appointment OF three COM
mlssloners OF estimate ana assessment These conf
mtssioners are TO make an assessment OF the loss
and damage, and OF the benefit and advan-
tage or the persons interested In the lauds
REQUIRED for and affected BY said proceed,
1ngs. The act further provides that all
acts now IN force relative to opening, &C, streets
and avenues snail apply 10 all proceedings under
this act, SO lar as the same are applicable. There
has been some disagreement the question
whether IN confirming reports Of commissioners IN
III quasi judicial character. But the language of
the constitution article section requiring that
Record, would seem TO put the matter beyond DIS:
pute, ana with this accords the case OF Canal ana
has been hec ~ a. THIS Court brown. extension ii
Howard, 80 that an appeal does not lie to the
confirming the report OF the Commissioners. But II
this were an open question here should think that
wise. The case OF Canal anu Walker streets was
dismissed ON appeal to the Court OF Appeals
from an order OF the General TT. Term, made
ground that the decision by The General Term
was under tho statute final and conclusive. THIS
seems 10 me TO be arecognon OF the principle bnat
the order could be Appealed 10 the General Term
The language OF Judge Davies in King VS.. Mayor
30 N. u, 1872 Is decided on this point. La OF the
Rensselaer, and Saratoga Railroad Company vs.
Davis. AZ n r., 1877, IL was held that an appeal lay
to the General Term and also to the Court OF APP
peals from all order c0ndemnlng lands under the
Railroad act 1t Is true that the order there APP
peaed from was practically an order cOndemning
the lands, and not simply an order Tor appointment
OF commissioners; that is, The Court of Appeals held
that the Special Term had jurisdiction to cOnsuer
whether the lands necessary for the corporate
purposes OF the railroad; While In the case now
nave been determined by the Commissioners OF the
Central Park. While, therefore, Inv own view IS
| tDat the 0rder OF continuation was aDDeaADle,
| prefer to examine the question on q different
ground. Surprising, then, that the order OF con-
| irmation, when made was not appeaable, can
| the Court entertain motion TO vacaie 1t for
error mistake irregularity or lllegaIltyY Assum.
ing mat the language OF the former statute
"hnai Ia aud d. conclusive" me meaning Of these
Court. SO they are construed IN IL N. Y.
400. do not see that these words give TO the order
| of confirmation any greater validity or more sacred
which has been affirmed on appeal to Tie Court OF
! ing has expired Every such Judgment Is fina and
conclusive upon all persons Interested whatsoever.
rms order OF continuation Az as ! nave already
any quastjudiclal tribunal possessing limited
powers. It Is q final order, made in special pro-
ceeding. The Court has appointed certain officers
TO ascertain and report uron certain disputed facts
viz, the value OF The property taken anu the benefit
and che Court has confirmed the report. In what way
| does this order OF confirmation differ as to It's
the report OF commissioners for interest III part.
| ton? And 1t Is TO be observed that the commits
slOners were not TO decide what land should be
That had already decided by the Central
Park commissioners. This proceeding might DC
bdn. These commissioners are to ascertain the
value OF property taken and Of benefits conferred.
1t Is insisted by the appellant mat The award Of
the commissioners, compared with the prior pro.
protection OF the constitution of the United
there be ones 1t Is on the part Of the
owner OF the lane to sell and on the part Of the
| city 10 buy certain land at such nJce the same
worth. This, as IL appears TO me- IS the utmost eject
that can lie given To the proceeding assuming that
| 1t Is contract. There Is no absolute
| price uxed between tile parties as TO this
| supposed contract but the compensation
L. TO be the actual value OF the premises 10 ascer
tain that value commissioners are appointed They
make report when the Court confirms. Is there
any principle OF law which prevents the Court on
good cause shown on proof, for instance, OF error,
injustice ana the like from opening the question as
TO the actual value, and having 1t tried again before
another and similar commission. IL is not neces'
sary 10 inquire whether without The act or 1871 the
Cont could nave done tns for the question
Is simply to tue constltutonaty or tnat act.
And looking upon Me action OF these commissioners
as proceeding to inquire what compensation tne
owners shall have for their property 30 hot see |
any constitutional objection that should prevent Ii9