Consolidated Edison Co. v. Lindsay

Tilzer, J.

(dissenting). Pursuant to execution of an urban renewal plan by the legislative bodies of the City of New York known as the Brooklyn Bridge Southwest Urban Renewal Plan, an order was entered on November 2, 1964 condemning the real property under title B of chapter 15 of the Administrative Code of the City of New York and the city acquired fee title to the subject streets. (Opinion of the court below at Special Term.) Fee title to the streets, nevertheless, the Special Term held, did not extinguish the petitioner utility’s property interests located in such streets since the Legislature had by local statute (Administrative Code, ch. 15, tit. E, Street Closing Condemnation Procedure) abrogated the common-law rule and granted to a public utility compensation for the damages it sustained.

We disagree. The petitioner acquired no exclusive .right to the location of its facilities in the streets chosen by it and it must relocate its structures at its own cost when public convenience and security so require. The sole exception to this common-law rule occurs when the police power over the regulation of streets is invoked for a proprietary function, that is, to compete with a utility by performing a public utility service.

As to the project under review, the Court of Appeals said of a similar exercise of the police power undertaken pursuant to the same General Municipal Law and title 1 of the National Housing Act of 1949, “it is much too late now to decide that slum elimination is not a ‘governmental function’”. (New York Tel. Co. v. City of Binghamton, 18 N Y 2d 152, 161.)

*398The common-law rule, moreover, is not abrogated by the provisions of a local statute governing isolated instances of street closings. The General Municipal Law under which Brooklyn Bridge Southwest Urban Renewal Plan was declared eligible as an area “ detrimental and a menace to the safety, health and welfare of the inhabitants and users thereof and of the Locality at large,” makes no provision for a departure from the common-law rule. On the contrary, the Legislature expressly provided that “the provisions of this article shall be controlling” and shall supersede “ the provisions of any other general, special or local law” that are “ inconsistent with * * * the provisions of this article ” (General Municipal Law, § 520). Furthermore, the departure or exception to the common-law rule applicable when the municipality is exercising a proprietary function is not to be stretched “ to apply it in cases like this where the city is not ‘ going into business ’ for itself, as it does when it operates a bus line or subway system.” (New York Tel. Co. v. City of Binghamton, supra, p. 160.)

Matter of City of'New York (Gillen Place) (304 N. Y. 215), upon which the Special Term relied as authority for an order in the nature of mandamus to compel the appellants to compensate petitioner for its property in closed streets, is to be limited to its own facts and to its special holding ‘ ‘ that when the city chooses to operate what are commonly called ‘ public utility ’ businesses the city’s operation thereof has no such priority over privately owned utility companies as to subject the latter to compulsory removal of their facilities without compensation in aid of the municipal operation.” (New York Tel. Co. v. City of Binghamton, supra, p. 159.) Gillen Place is authority solely for the exception to the common-law rule, that is, that there " there was a condemnation proceeding to enable New York 'City to perform a proprietary function.” (New Rochelle Water Co. v. State of New York, 10 N Y 2d 287, 292; emphasis in original.)

The Special Term’s reliance upon Matter of City New York (Fort Greene Houses) (177 Misc. 101, affd. 266 App. Div. 795, affd. 291 N. Y. 788) is also misplaced. In that case, involving the acquisition of real property for a low-cost housing project, the court noted that the order of condemnation left undisturbed the public easements in the streets and reasoned that there was ‘ ‘ no intention to acquire in this proceeding the interest, if any, of the utility companies, within the street areas.” (p. 103). In concluding that the utility company claimants were not entitled to damages, the court commented (p. 102): “In none of the many condemnation proceedings tried by this court has *399any similar claim ever been advanced by the utility companies and in no case that they cite have they been held entitled to damages in condemnation for their franchises or the equipment they maintain in New York city streets. In fact, they fail to show that they ever paid the city, either by way of benefit assessment or otherwise, for any real estate interest in streets which the city acquires in trust for the public.” As indicated, Fort Greene Houses was affirmed by the Appellate Division, Second Department. One of the Justices, Hagarty, J., dissented, stating that there was “ clear and undisputed proof that the affected streets were to be discontinued and, in fact, have been obliterated by buildings permanently erected on and over them.” (p. 797). The Court of Appeals affirmed (291 N. Y. 788).

No “ compelling considerations of constitutional right ” (New York Tel. Co. v. City of Binghamton, supra, pp. 159-160) are presented which mandate an exception to the common-law rule. If the petitioner has not recaptured its investment in its property via depreciation rates, it may recover its" costs as part of the cost of rendering its services. And in any event, resurrecting a blighted portion of petitioner’s monopoly area of service enhances its future prospects and enables it to exercise unimpaired its full franchise rights in the urban renewal area.

The petitioner’s property right in the streets of the city is but a mere privilege and any injury sustained by it in relocating its facilities as a result of a sovereign function is damnum absque injuria.

The order should be reversed and the appellants’ cross motion granted dismissing the petition as a matter of law.

In Matter of City of New York (Consolidated Edison Co. of N. Y.)