People ex rel. Reynolds v. Common Council

Titus, Ch. J.

This proceeding is instituted under chapter 393 of the Laws of 1890, authorizing the city of Buffalo to audit and adjust the amount of damage which has been occasioned to the property of Amelia E. Reynolds.

In 1885, certain proceedings were instituted hy the city of Buffalo to take lands necessary to extend Elmwood avenue from Butler street to Forth street. The land of the respond ent adjoined property through which the street passed.

On this land ivas a large double house, a part of which was on the property taken, and the other part on the land of the respondent. Fo portion of the property of the respondent was taken in opening Elmwood avenue, but in removing the portion of the building on the land taken by the city for the improvement, great damage was done to the portion of the house on the respondent’s land. The commissioners in that proceeding did not award the respondent damages, because none of her property was taken, and no authority was found to authorize an award to her.

The legislature then passed an act (Chap. 393 of the Laws of 1890), under which the present proceeding was taken. Commissioners were appointed by the court, as provided by the act, to appraise the damage to respondent’s property. They made their report and awarded her $5,500. The report was confirmed by the court on the 10th day of February, 1891. On the 3d day of March, 1891, and before the common council had audited and adjusted her claim, the legislature repealed the act of May, 1890 (Chap. 42 of the Laws of 1891).

An application for a peremptory writ of mandamus was made at a Special Term of this court, which was granted, commanding the common council to audit and adjust the amount of damages occasioned to the property of the respondent at $5,500, the sum fixed by the commissioners in then-report, and to raise the same by assessment upon the property benefited by the opening of Elmwood avenue. An appeal by the common council from that order, brings before us the questions we are to consider.

Before the passage of the act of 1890, Mrs. Reynolds had entered into an agreement with the city of Buffalo, in consideration of the sale to her of the building upon the property taken in opening the street, to release the city from all damages which her property had sustained by reason of the opening of the street and the tearing down of one-half of the building.

An appeal was taken to this court from an order denying a stay of the proceedings of the commissioners appointed to award damages to the respondent, and many of the questions here raised, were passed upon adversely to the city on .that appeal, among them the regularity of the proceedings and the validity of the statute under which they were instituted, chapter 393 of the Laws of 1890, and the right of the legislature to authorize the city to pay the respondent whatever sum she was equitably entitled to, the force and effect of the contract made by Mrs. Reynolds with the city, namely, that it did not estop her from claiming damages under that act, but that if she had received anything under the agreement with the city it must be allowed in reduction of any award of damages to her. It appears from their report, that the commissioners did take the agreement into consideration and credit the city on such award with the value of the materials which she had received under her contract. So far as these questions are concerned, this court has passed upon them, and they must now be considered res aeljudieata and not open for further consideration, at least here. Culross v. Gibbons, 130 N. Y. 447.

The learned counsel for the defendant claims that the act of 1890, chapter 393, is permissive and not mandatory. The language used in the act is not different from that used in the many cases where this question has been before the courts. In People ex rel. Conway v. Board of Supervisors of livingston Co., 68 N. Y. 114, the same language was used by the legislature, and the court held it was mandatory. Judge Eabl, in his opinion, said: “ Where the public interest or private right requires that the thing shall be done, then the -word 4 may3 is generally construed as ‘ shall,3 33 and a peremptory writ of mandamus was ordered. In People v. Board of Supervisors of Otsego Co., 36 How. Pr. 1, it was held that where the legislature authorized and empowered the board of supervisors to cause taxes illegally assessed and paid to the county to be repaid, it became their dirty to do it, and a peremptory writ of mandamus was ordered. On appeal to the Court of Appeals, 51 N. Y. 401, the court held that the statute was mandatory, the court saying that the words “ authorized and empowered33 are mandatory when the statute directs the doing of a thing. Many other cases have been examined, but enough have been cited to illustrate the rule that where a party has a claim based upon natural justice and equity, permissive words in a statute are construed so as to accomplish what the legislature intended.

The counsel for the appellant claims that the statute requires the expense of the proceeding to appraise such damages to be included in the amount of damage to be raised by local assessment, and the order only requires the common council to raise the amount of damage, not including the expense of the proceeding ; that the common council is without power to comply with the order, the only authority being the statute in question. It is perhaps a sufficient answer to this that chapter 42 of the Laws of 1891, which is the act repealing chapter-393 of the Laws of 1890, provided that the commissioners appointed under the act repealed, should be paid by the city out of the general fund, and it appears that the expense of the proceeding was paid by the city without waiting to include it in the amount of damage to be raised. Ro reason can be assigned why the city may not include the expenses of the proceeding in the amount of damage to be assessed and reimburse the general fund out of which it was paid, unless it be the act of 1891, above referred to. Certainly nothing in the order forbids it, and if the charter authorizes, it it may well be included in the amount to be raised I do not think it is material as affecting the powers of the common council to comply with the mandamus.

By the act of 1890, the city was to audit and adjust the amount of damages to the respondent’s property, after the amount of such damage had been appraised, and the claim of the counsel for the appellant that the commissioners had no authority to “ make an award ” to her for damages to her property is, it seems to me, without force. The statute contemplates an appraisal of her damage, and the fact that in their report they say they “ make an award for damages to her property ” adds nothing to the force of the statute, as the statute “ awards ” the amount of damage appraised to her, and when the common council have appraised the damage, the statute directs to whom it shall be paid.

The principal claim made by the appellant is that the act of 1890 has been repealed, and, therefore, there is no law authorizing or requiring the common council to audit and adjust the damages. The. counsel’s reasoning seems to rest upon the assumption that the respondent has no claim which she can enforce after the statute has been repealed. In this I think he is mistaken. It is not claimed that if this was an award by commissioners in eminent domain proceedings and confirmed by the court it would not then be a valid claim against the city and have the force and conclusiveness of a judgment with all of its incidents, including that of contract. Mayer v. Mayor, etc., 101 N. Y. 284.

But it is insisted that these are not eminent domain proceedings, and consecpiently no such character or force attaches to the award of the commissioners. While it is not a proceeding directed against the property of another for a public purpose, the statute clothed it with the character of such a proceeding, and when the report was confirmed by the court its character was not changed. It had ripened from its equitable nature into a legal and valid claim against the city. The respondent’s damages had been ascertained and fixed; it was then enforcible against the city, and under the authorities-it is difficult to see how the legislature could divest her of the claim. People v. Board of Supervisors of Westchester Co., 4 Barb. 64; In the Matter of the Commissioners of Washington Park, 56 N. Y. 144; In the Matter of the Rhinebeck, etc.,, Co., 67 id. 242.

I do not think it necessary to refer to the statute of 1890 for authority to pay the claim, assuming it to be a valid and legal claim after the report was confirmed.

Section 15, of the revised charter provides that “ the common council shall audit all claims against the city of Buffalo.” A like provision is found in the old charter, and it confers upon that body power to audit all claims. This is a liquidated claim. FTothing is to be done in addition to what has already been done to fix the amount. It has been determined in the manner directed by law, and the power conferred upon the common -council is ample, in the absence of the statute of 1890, to audit and adjust it. The right is clear and the amount is not in dispute, therefore, I think the remedy by mandamus to enforce its payment is proper. It is damage occasioned by a local improvement and should properly be assessed upon the property benefited by the improvement. The order appealed from should be affirmed, with ten dollars costs and disbursements.