Goff v. Nolan , 62 How. Pr. 323 ( 1881 )

Westbrook, J.

—Without any elaboration the conclusions reached will be stated.

First. As to the alleged agreement with the corporation of the city of Albany that the property to be taken should remain a park, it is answered:

1st. That there is no evidence of any such agreement made with the corporation as such.

2d. No valid agreement can be made by the official representative of a municipal corporation which will, on a measure of public policy, bind their successors (Dillon on Municipal Corporations [3d ed.], secs. 445, 455, 457 ; People agt. The Long Island Railroad Company and ano., 60 How., 395, 408, 409, 412, 413 ; Newton and ors. agt. Commissioners of Mahoning, 10 Otto, 548).

Second. As to the objection made to Alderman1' Murphy’s moving for a reconsideration of the vote upon the passage of the resolution to widen the street, after, as the plaintiffs allege, the same had been declared lost, it is clear:

1st, That such motion was made prior to the declaration of the result of the vote.

2d. If made after a declaration by the presiding officer that it was lost, it would not have invalidated the vote taken upon it. The question raised is one of parliamentary law, which the common council had the sole right to decide. If the resolution had been lost, it was competent for tbat body to introduce it anew, and pass it, and the mode, therefore, of changing the first action was entirely within their control (People agt. Common Council of Rochester, 5 Lans., 11 ; Commonwealth agt. Lancaster, 5 Watts, 152).

Third. This court has no power to review the discretion of the common council as to the necessity of widening the street and taking the property of the plaintiffs for that purpose (People agt. Smith, 21 N. Y., 595 ; Brooklyn Park Commissioners agt. Armstrong, 45 N. Y., 234 ; In Matter of Fowler, 53 N. Y., 60 ; Matter of Deansville Cemetery Association, 66 N. Y., 596).

Fov/rtih. Alderman Carey was not interested so as to make this vote void.

Hone of his property was taken. That which is proposed to be taken is between • his lot and Bleecker street, and the effect of the widening will be simply to give him a frontage on said Bleecker street, and whether that will be a benefit to him or not is, at least, under the proof submitted, doubtful.

The question was simply a legislative one, whether the public interests required the widening of the street. The passage of - the resolution would, not enable Carey to sell any property of his to the city, and with the compensation to the owners of the property taken, and its mode of payment, he has nothing to do.

If the widening of Bleecker street be really a public improvement, then every alderman voting for it was more or less benefited, and if the argument urged against the vote of Carey is sound, it can be made against every one cast. Eo adjudged case, which I have been able to find, sustains the objection, and if the principle upon which it rests be correct, it would be difficult to say how much of federal and state legislation, as well as that of villages and cities, would be nullified (Steckert agt. The City of East Saginaw, 22 Mich., 104).

Fifth. The proof submitted by the defendants is ample to show that Alderman McCormick was present, and that the resolution was adopted by a legal vote.

Sixth. The motion for the injunction must be denied, with costs.