This proceeding was instituted under chapter 727 of the Laws of 1896 for the purpose of acquiring title to certain lands for an addition to Riverside Park, in the city of Hew York.
Commissioners were appointed who, after various hearings, filed a preliminary and subsequently a final report, in which they awarded damages to the owners of land taken and imposed an assessment Upon other lands for benefits conferred. Th',e respondents opposed the confirmation of the final report in so far as it imposed an assessment upon their lands, upon the ground that the act authorizing it was unconstitutional and void, in that it deprived them of their property without due process of law. The -court at Special Term sustained their objections (Matter of Mayor, etc., of New York, 34 Misc. Rep. 719), and the city has appealed from so much of^ the order as refused to confirm the report of the commissioners.
I think the order should be affirmed. The: act, as I read it, does not in terms, nor by a reference to other statutes, provide for a notice to be given to the owners of land assessed for benefits, and if this be true it is unconstitutional. The 1st section describes the lands to be taken and the 2d makes it the duty of the corporation counsel to take the necessary steps for. acquiring the title, and then provides as follows : “ Except as provided in this act all provisions of law relating to the taking of private property for public streets or places in said city are hereby made applicable so far as the same may be necessary for the acquiring of said land as aforesaid.” Section 3 provides that the title to the lands taken shall vest in the city at the time of the filing of the- oaths of the commis*561sioners of estimate and assessment. Section 4 in no way relates to the title of the land to he taken, but simply has reference to the damages to he paid and by whom.. This section provides that all damages awarded for the lands taken, with interest thereon, and all costs and expenses of the proceeding “ shall be borne and paid, three-fourths thereof by the mayor, aldermen and commonalty of the city of New York and the remaining one-fourth by the parties * * * benefited by such improvement,” and directs that the commissioners “ shall assess to the extent of one-third of the amount of said award, interest, costs and expenses upon all such parties * * * as they may deem to be benefited by such improvement * * Section .5 relates to the construction and maintenance of the addition to the park and the raising of the necessary funds for that purpose.
It will be observed that the only provision in the act from which it can possibly be urged that any notice was to be given is the portion of the 2d section above quoted, and this relates to acquiring the title and not to making an assessment for benefits. This provision refers to an existing local statute (See Consol. Act [Laws of 1882, chap. 410], §§ 958-1005, as amd.), in order to indicate the procedure necessary to be taken for the acquisition of the land. The provisions of the local statute as to acquiring title were thus incorporated in the act (Choate v. City of Buffalo, 39 App. Div. 379 ; affd., 167 N. Y. 597), but nothing was incorporated as to the assessments for benefits. The authority and proceedings to be taken to acquire the title are contained in the 1st, 2d and 3d sections of the act. The 4th section, in so far as it relates to assessments for benefits, deals with an entirely new subject and one in no way related to and not necessarily having any connection with the subject of acquiring the title. The duty of the commissioners in relation to the acquisition of the land required for the addition to the park was entirely distinct from their duty of levying an assessment for benefits (Matter of Mayor, 46 App. Div. 52), nor did the acquisition of the title require any assessments for benefits.
The case, in principle, cannot he distinguished from Stuart v. Palmer (74 N. Y. 183). It was there said that “The Constitution sanctions no law imposing such an assessment without a *562notice to and a hearing or an opportunity of a hearing, by the owners of the property to be assessed. It is not enough that the owners may by chance have notice or that they may, as a matter of favor, have a hearing. The law must require notice to them- and give them the right to a hearing and an opportunity to be heard. It matters not upon the question of the constitutionality of such a law that the assessment has in fact been fairly apportioned. The constitutional validity of law is to be tested not by what has been done under it,-but by what may, by its authority, be done. The Legislature may prescribe the kind of notice, and the mode in which it shall be given, but it cannot dispense with all notice.” ' This case was followed and cited with approval in Remsen v. Wheeler (105 N. Y. 573) the court saying: “ The lot owners were entitled at some stage of the proceeding to a notice and an opportunity to be heard; and unless the law gave them the right to notice and an opportunity to be heard before the board which was authorized to-impose the assessment, it was unconstitutional and void for the reason stated in Stuart v. Palmer (74 N. Y. 183).” It was also-followed in McLaughlin v. Miller (124 N. Y. 511) and Matter of Trustees of Union College (129 id. 308). For these reasons I think the order, in so far as appealed from, should be affirmed, with ten. dollars costs and disbursements.
Ingraham, J., concurred.
■ Order reversed and report modified as stated in opinion, and as, modified affirmed, without costs.