People ex rel. Seaver v. Green , 52 How. Pr. 440 ( 1873 )

Fancher, J.

—William C. Traphagen, John McClave and William A. Seaver, severally apply for writs of mandamus against the comptroller, requiring him to pay the allowances made to the relators, as commissioners in the proceedings to open the public drive from One Hundrd and Fifty-fifth street to the Kingsbridge road. On the 3d of June, 1873, the report of the commissioners was confirmed, and the costs and expenses were taxed. Among the items thus allowed were the charges of the relators, which were taxed at $5,000 each.

Considering the extent and character of the services of the relators, the items allowed them were reasonable and much less than has been generally allowed for similar services.

Their work was performed with expedition, and to the apparent satisfaction of all parties interested.

But the comptroller contends that chapter 483, laws of 1862, page 966, limits the compensation of the commissioners to thirty cents per foot for the lineal extent of the avenue opened.

The phraseology of the statute, as to the opening of streets or avenues, seems to support the views of the comptroller.

The extent of this boulevard or public drive was 15,238.79 feet, which, at thirty cents per foot, would make the total compensation $4,571.61, or $1,527.01 to each of the commissioners. This would not be an adequate compensation to the commissioners. The counsel for the relators contends that the statute of 1862 is not applicable to the case of an opening of a street or avenue which was authorized by the legislature, but only to a street or avenue opened by the common council. In the Matter of the Widening of Broadway, this precise question was considered at special term by Mr. justice Gilbert. He came to the conclusion that the act of 1862 does not refer to street proceedings originating in the legislature, but was intended to apply only to proceedings which originated in the common council. The learned justice has not supported his conclusion by any reasoning, and it is difficult, on reading the statute, to perceive what application the statute has to street or avenue proceedings initiated by the common council, which would not equally be the case in such proceedings initiated by an act of the legislature. There is no limitation in the words of the statute. Its title is “ An act to prevent fraud in the opening and laying out of streets and avenues in the city of New York,” and a chief purpose of its provisions is to reduce and limit the expenses of proceedings in such cases.

But I am not called upon to determine on these motions whether the decision of Mr. justice Gilbert, in the Broadway case was correct or not, and I disclaim any intention now of doing so.

As it was a special term decision, it could only be appropriately reversed at the general term.

The proceedings in this matter were initiated by the joint application of the department of public parks and the department of public works, for and in behalf of the mayor, aider-men and commonalty of the city of New York, and the proceedings were authorized by an act of the, legislature. So far, all proceedings initiated by the common council are authorized by an act or by acts of the legislature.

The common council must find their authority for the proceedings in the statutes of the state. But these proceedings were not carried on to open or lay out a street or avenue. It might as well be said the purpose was to open a highway. No one would claim that the general laws of highways apply to the proceedings. The special purpose of the proceedings in this matter was to acquire title to the lands within certain specified limits, for the laying out of a road or public drive, northward from One Hundred and Fifty-fifth street to the intersection of the Kingston dge road with a street called Inwood street.

Such a road or public drive is not technically á street or avenue. There are roads or public drives through and beyond the Central park. They are not strictly streets or avenues. The word “ drive,” employed as a noun, has been lately extended beyond its former meaning, which only signified an excursion in a carriage ; so the word “boulevard,” which originally indicated a bulwark or rampart, and was afterward applied to a public walk or road on the site of a demolished fortification, is now employed in the same sense as public drive.

A park is a piece of ground adapted and set apart for purposes of ornament, exercise and amusement. It is not a street or road, though carriages may pass through it.

So a boulevard or public drive is adapted and set apart for purposes of ornament, exercise and amusement. It is not technically a street, avenue or highway, though a carriage-way over it is a chief feature.

I think, therefore, that the statute of 1862 does not apply to the proceedings in this matter and that as the allowances made to the commissioners is reasonable and proper, the motions for mandamus made by the relator should be granted, with ten dollars costs in each case.

The above decision was affirmed by the general term, October, 1873.

Ingraham, P. J., Brady and Daniels, JJ. No opinion rendered.