Allen v. Village of Northville

The description of the land in the petition is not as full and clear . as it might have been, but we think it is sufficient. One needs some acquaintance with the land described in order to understand any description, and we think that one who is acquainted with the village of Northville would have no difficulty in understanding just what land was intended. As the petition was for the widening of Bridge street, it is evident that the existing line of Bridge street formed one of the sides of the property which was to be added to the street.

A resolution was passed by the trustees July 2, 1885, which describes the improvement in full and thus avoids the defect passed upon in People ex rel. Johnson v. Whitney's Point (32 Hun, 508). The proper notice was served and posted and the present plaintiff appeared before the trustees. After a hearing they adopted another resolution referring to the former and deciding that the improvement be made. The plaintiff objects that this second resolution does not describe the lands. It is enough that the lands had been described in the former resolution, to which this refers. In the case last cited the lands were not described in any resolution.

We do not consider it necessary to inquire as to the regularity of the mode of summoning and swearing the jury. The plaintiff has *242exercised his right of petition to the county judge for the appointment of commissioners, and the commissioners have, after a proper hearing, made an award. That award is all that is of any force now. Merritt v. Portchester (71 N. Y., 309) does not apply. A point which the plaintiff urges is, that under the statute (Laws 1870, chap. 291, tit. 7, § 5) the damages will not be payable to him for a year and that, therefore, the provisions of the statute for taking land are unconstitutional. We think not under Chapman v. Gates (54 N. Y., 132). It may perhaps be that the owner of the land can claim that the commissioners, in’ awarding such damages “ as they shall deem just,” should take into account this delay of payment. In fact they may have done so.

The plaintiff again urges that the commissioners awarded $650 damages; that these damages (exceeding $500) cannot be paid except by a vote of the taxable inhabitants. (Title 4 of the act.) We do not think that this is correct. The widening of a street is not a purchase of land, and the decision in Latham v. Richards (12 Hun, 360) does not apply. The proceeding for laying out and widening streets and the like under title 7 are not governed by title 4. They plainly cannot be. It cannot be told in advance what the damages will be that shall be awarded to the owners of land taken for these purposes. Therefore, section 5 of title 4 is inapplicable. Besides, according to the language of the sections 2, 3 and 4, it is not the amount, but the nature of the expenditure, which makes it “ ordinary.” The section does not say that, if in excess of $500, the expenditure is “ extraordinary,” but only that an “ ordinary ” expenditure is not to exceed $500. Furthermore, these damages are to be specially assessed on the estates, real and personal, in the village. (Sec. 5, tit. 7.) And in the same section the trustees are required to pay the award. The positive requirement shows that no submission of a resolution to the taxable inhabitants is contemplated. For by the previous section the trustees, on the making of the .award, may take possession of the land and make the improvement.

We think that the learned justice properly denied the motion. And, indeed, we might have very well rested our decision upon his ;able and -well-reasoned opinion.

Order affirmed, with ten dollars costs and printing disbursements.

I concur in the opinion of Mr. Justice Learned, except as to the last point or question therein considered.

The expense of widening the street was an “ ordinary expenditure” (Laws of 1870, chap. 291, tit. 4, § 2, and tit. 3, §3, sub. 25), hence was limited to §500 by section 3 of title 4. If, in excess of this sum, the expense was an “ extraordinary expenditure ” (see § 4 of tit. 4, as amended in 1884, chap. 131), and to be lawfully incurred, required the sanction of an affirmative vote by the taxable inhabitants. (Tit. and sec. last cited.)

The land for the widening of the street, requiring an expenditure of a sum exceeding $500, could not, therefore, be appropriated for that purpose until an affirmative vote for the expenditure was given, as provided by law. Such vote not having been given, the prior proceedings were nugatory, and left the plaintiff’s title unaffected. (Dodge v. Village of Catskill, 66 N. Y., 648.)

Order affirmed, with ten dollars costs and printing disbursements.