author: Htjbbs, J. O’Bbien, J.

text:
    In the Matter of Frank E. Merriweather, Respondent, against Carroll J. Roberts et al., as Members of the Board of Health of the City of Buffalo, et al., Appellants.
    (Argued April 29, 1935;
    decided May 28, 1935.)

      Gregory U. Harmon, Corporation Counsel (Andrew P. Ronan of counsel), for appellants.
    The moving papers fail to show a clear legal right to an order of mandamus. (Matter of Meehan v. Flaherty, 119 App. Div. 128; Chian verini v. Murray, 237 App. Div. 856; Walsh v. Patterson, 239 App. Div. 757; People ex rel., Hannan v. Board of Health, 153 N. Y. 513.) Section 25 of the Civil Service Law (Cons. Laws, ch. 7) is not intended to be enforceable in reference to non-competitive positions or those in the labor class. (Matter of Stutsback v. Color, 168 N. Y. 416; People ex rel. Davison v. Williams, 213 N. Y. 130; Matter of Fornara v. Schroeder, 261 N. Y. 363; People ex rel. Garvey v. Prendergast, 148 App. Div. 129; People ex rel. Gallup v. Williams, 139 App. Div. 355.)

      Gilbert J. Pedersen for respondent.
    Section 25 of the Civil Service Law prohibits the removal of a civil service employee in the non-competitive class where the removal is influenced or affected by the political opinions and affiliations of the employee so removed. (Chittenden v. Wurster, 152 N. Y. 345; Rogers v. Common Council of Buffalo, 123 N. Y. 173; People ex rel. Goldschmidt v. Travis, 167 App. Div. 475; People ex rel. Gallup v. Williams, 139 App. Div. 355; People ex rel. Somerville v. Williams, 217 N. Y. 40.) Mandamus is the only appropriate remedy available to the petitioner. (People ex rel. Somerville v. Williams, 217 N. Y. 40.)
   Htjbbs, J.

The respondent held the position of assistant bathhouse keeper, a position in the non-competitive class under rule 20 of the classified civil service of the city of Buffalo. Upon a change in the city administration, the Board of Health, upon the payroll of which respondent’s name appeared, removed him from his position. He has instituted this proceeding for a mandamus order directing his reinstatement. The removal he alleges was on account of his political affiliations. He contends that he was removed in violation of section 25 of the Civil Service Law (Cons. Laws, ch. 7), which reads as follows: Recommendations for appointment or promotion. No recommendation or question under the authority of this chapter shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of the rules established as aforesaid, shall be in any manner affected or influenced by such opinions or affiliations. No person in the civil service of the state or of any civil division or city thereof, is for that reason under any obligation to contribute to any political fund or to render any political service, and no person shall be removed or otherwise prejudiced for refusing so to do. No person in the said civil service shall discharge or promote or reduce, or in any manner change the official rank or compensation of any other person in said service, or promise or threaten so to do for giving or withholding or neglecting to make any contribution of money or service or any other valuable thing for any political purpose. No person in said service shall use his official authority or influence to coerce the political action of any person or body, or to interfere with any election.”

The Special Term granted an alternative mandamus order directing the Board of Health to reinstate him as of the date of his removal or show cause why the same should not be done. This order the Appellate Division unanimously affirmed and from its order of affirmance it has granted leave to appeal upon the question above certified. The non-competitive class under rule 20 of the classified civil service of the city of Buffalo includes such positions as are not in the exempt class or the labor class and which it is impracticable to include in the com-* petitive class. To fill a vacancy in the non-competitive class an appointing officer may nominate a candidate for appointment subject to such non-competitive or qualifying examination as the Civil Service Commission of the city shall determine to be appropriate for the position. No appointment may be made until the Commission shall certify that the person is qualified.

Upon this appeal no question is presented with respect to the qualifications of the respondent for the position which he occupied. It is to be assumed that he was duly appointed after examination and certification by the Civil Service Commission. The sole question is as to whether, if it be found that he was removed for political reasons, the court has power to reinstate the petitioner. Determination of that question is dependent upon what may be found to be the true purpose and effect of section 25 of the Civil Service Law when applied to one in the noncompetitive class. That section was- consideration in People ex rel. Garvey v. Prendergast (148 App. Div. 129), where a deputy city paymaster in the Department of in the city of New York was removed as he alleged for political reasons. The position which he occupied was in the exempt class, a class for which it is deemed impracticable or inadvisable to prescribe rules. That class includes in the State service deputies of principal officers, one secretary of each officer, board or commission authorized by law to appoint a secretary, one clerk and one deputy clerk of each court and one clerk of each elective judicial officer, and all unskilled laborers and skilled laborers not included in the competitive or non-competitive class and all subordinate offices for the filling of which competitive or noncompetitive examinations may be found to be not practicable. (Civil Service Law, § 13.)

In cities, unskilled laborers and such skilled laborers as are not included in the competitive class or the noncompetitive class are included under a separate classification known as the labor class. (Civil Service Law, § 18.)

With respect to the position consideration in People ex tel. Garvey v. Prendergast (supra, p. 134), the court, referring to section 25, said: “ The statute, then, may be construed to mean that no appointment or selection to or removal from an office or employment shall be in any manner, within the intent and purpose of the rules established as aforesaid, affected or influenced by such opinions or affiliations. * * * If it applies to positions in the exempt class, it directs the principal executive officers not to be affected or influenced by political opinions or affiliations in the selection of deputies, authorized to act generally for and in their place, and of private secretaries who are to maintain the most confidential relations with them. * * * In a government by parties it is to be expected that the principal executive officers, the heads of departments, whether appointed or elected, and their deputies and secretaries, will be selected with some reference at least to the political opinions and affiliations of the appointees, and it is plain that the legislature did not intend to direct otherwise. The purpose of creating an exempt class would be defeated if the motives of the appointing officer could be inquired into. ⅜ * * Briefly, then, insofar as the question before us is involved, the scheme of the statute appears to have been as follows: (a), To divide the classified service into two classes: 1, a class concerning which it was not deemed practicable or advisable to prescribe rules and which was, therefore, called ‘exempt’; 2, a class, consisting of the competitive, non-competitive and labor classes, concerning which it was practicable to prescribe rules governing removals and appointments, and to test by examinations the qualifications of persons to be appointed in all but the labor class; (b), With respect to the second class, to confer certain preferential rights upon specified classes of persons and to give them the remedy of the writ of mandamus for a violation of those rights; (c), To limit removals from certain specified positions, i. e., those in the competitive class and of a regular clerk or head of a bureau, by providing that the reasons for removal be stated and recorded, that an of making an explanation be afforded the person removed, and that a person removed in disregard of that provision be given the remedy of the writ of mandamus; (d), To guard the second class, in so far as practicable, from political influence by providing that appointments to, or removals from, positions in it should not be affected or influenced by the political opinions or affiliations of the persons appointed or removed. But in view of the manifest mischief likely to result from conferring the remedy of the writ of mandamus upon a person removed in violation of that provision, that remedy was withheld and the said provision was intended to be directory only. We conclude, therefore, that said section 25 does not apply to positions in the exempt class and that, even if it did, the relator would not be entitled to the remedy sought in this proceeding.”

In People ex rel. Somerville v. Williams (217 N. Y. 40, 44) it was said that, despite the fact that section 25 does not provide specifically for a remedy by mandamus as do sections of the law dealing with certain violations and specified classes of persons (§§ 20, 21 and 22) or for penalties for certain violations as do sections. 26, 26-a and 27, nevertheless mandamus is available and the appropriate remedy to be invoked by any person removed from office or employment on account of his political

In that case the court had before it for determination, as stated in the opinion, a single question of law, viz., whether one who holds an office in the competitive class of the state civil service who is removed solely for political reasons is entitled to reinstatement.”

Employees in the competitive class of the civil service of the State or of any civil division thereof are not subject to removal except upon charges to be preferred in writing. (Civil Service Law, § 22, subd. 2; Charter of City of Buffalo, § 444; Local Law, No. 4, 1927; Local Laws, 1932, p. 21.)

They constitute a protected class in that they can only qualify for their positions through competitive examinations and may only be removed after opportunity to answer written charges, which charges and answer must be made a part of the records of the Commission.

An employee in the competitive class would seldom be called upon to invoke the remedy referred to in People ex rel. Somerville v. Williams (supra), as available under section 25. If the fact of dismissal by reason of political opinions or affiliations were to appear from the charges filed, the remedy by mandamus prescribed by section 22 would be ample, and if fictitious grounds were stated in the charges to cover a removal for political opinions or affiliations the charges could ordinarily be refuted and reinstatement obtained through mandamus under section 22. In any event, much more cogent reason appears for affording the extraordinary remedy of mandamus held to be available under section 25 to an employee in the competitive class who has earned his appointment through competitive examination than to one recommended for appointment by a partisan official or board and subjected only to a qualifying non-competitive test by the Commission, or to a laborer or other employee not afforded special protection by the statute who is appointed without] examination as to fitness.

The statements in the opinion in People ex rel. Somerville v. Williams (supra), referring to the exempt, noncompetitive and labor classes, and indicating that they should be grouped with the competitive class as entitled to a remedy by mandamus for removal in violation of section 25, were unnecessary in deciding the question before the court which related solely to a member of the competitive class and the decision should be limited to the question before the court in that case.

Repeated efforts have been made by the Legislature to extend the benefits of tenure in employment to those in the non-competitive class which have resulted, doubtless through the proven unworkability of the plan, in repeal of the provisions enacted for their benefit. Such is the history of section 31 of the Civil Service Law and section 444 of the charter of the city of Buffalo. Such benefits have, however, been extended to limited classes of such employees, as honorably discharged soldiers, sailors and marines. (Civil Service Law, § 22.) To attempt, by judicial construction, to extend the classification beyond the limits set by the Legislature or to find an unexpressed intent to grant remedies not by it prescribed seems neither necessary nor advisable. If every employee or appointee in the classified civil service whose position has been obtained without the requirement of passing a competitive examination were to be accorded upon dismissal the right to mandamus to review the action of the employing officer or board responsible for his discharge upon the sole ground here under consideration, either chaos would result through the flooding of the courts with mandamus proceedings or there would result an extension beyond the clear legislative intent of the tenure of office features of the civil service.

The effect of the decision of the Appellate Division would be to make the administration of the Civil Service Law so impracticable that it could not be enforced. In the end, such a condition would tend to the nullification of the law. The courts have definitely decided that section 25 does not apply to the exempt class. The same reasoning requires a holding that it does not apply to the non-competitive class.

The orders of the Appellate Division and of the Special Term should be reversed and the petition dismissed, with costs in all courts. The question certified should be answered in the negative.

O’Bbien, J.

(dissenting). This petitioner, Merri-weather, proved his merit and fitness for the position of assistant bathhouse keeper of the city of Buffalo by qualifying in a non-competitive examination and in December, 1930, he was appointed to that position. In April, 1934, he was removed by the Board of Health, solely for political considerations as lie alleges, and another person of the same political affiliations as those of the members of the Board of Health was appointed in his place. His allegations relating to the cause of his removal are denied by the removing officers and, on the issue thus created, the court at Special Term made an alternative order of mandamus to enable a jury to determine the fact. The Appellate Division has unanimously affirmed the order of the Special Term. The majority of this court is now holding that the effect of this decision is to make the administration of the Civil Service Law so impractical that it could not be enforced. The answer to this doctrine is found in the following statement by this court in People ex rel. Somerville v. Williams (217 N. Y. 40, 44): “ It is also argued that to permit one who is removed for political reasons to seek reinstatement would result in mischief. It seems to us that the mischief results from the violation of the statute, not from compelling reinstatement in cases where removal is made in violation of law.”

A jury might not credit petitioner’s allegations, but the proposition seems plain that the provisions of section 25 of the Civil Service Law confer the right, in the event that the alleged facts are proved, to reinstatement by mandamus. If the argument of the removing officers is correct, the statute does not prevent them from summoning any of their subordinates to their presence, assuring him that he is honest and efficient, expressing fulsome sympathy for him and his family, informing him that, to their sincere regret, he is a member of an opposing political party or faction, that, solely for political considerations, they are constrained to remove him and to appoint one of their own political supporters in his place, and the law affords no redress to the subordinate thus illegally removed. This argument is in complete conflict with the principle of this court’s unanimous decision in People ex rel. Somerville v. Williams (supra).

Section 25 provides: “No recommendation or question under the authority of this chapter shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of the rules established as aforesaid, shall be in any manner affected or influenced by such opinions or affiliations.” This petitioner’s position is in the non-competitive class of the classified civil service and, like positions in the competitive class, is within the scope of the rules established by the Civil Service Law. Offices in the unclassified service and offices and positions in the exempt class of the classified service are not within the scope of these rules and the effect of section 25 upon them does not immediately require actual decision. Two decisions in the lower courts, People ex rel. Gallup v. Williams (139 App. Div. 355), and People ex rel. Garvey v. Prendergast (148 App. Div. 129) dealt with political removals. In the Gallup case the Appellate Division in interpreting section 25 held that the State Comptroller has power to remove an employee in his office for any cause other than political considerations ” and that mandamus will lie to test the' issue of fact whether the removal was based upon political considerations. In the Garvey case the Appellate Division in another department decided that mandamus will not he. In the Somerville case, while the relator occupied a position in the competitive class, we accepted the rule in the Gallup case and rejected the one announced in the Garvey case. The ruling which this court made in reference to political removals of employees in the competitive class controls appointment to and removal from employment in the non-competitive class, for both classes are within the scope of the rules established in pursuance of the Civil Service Law.

The principle enforced in our decision in People ex rel. Somerville v. Williams (supra) is decisive on the two elements presented in the case now before us: (1) The statute is not merely directory but is mandatory, and (2) mandamus to compel reinstatement is the appropriate remedy. That this legislation amounts to something more than a gentle suggestion and a benevolent admonition to depart from the practice described by the semi-barbarous maxim that' to the victors belong the spoils ’ ” (Rogers v. Common Council of Buffalo, 123 N. Y. 173, 177), is directly decided in the Somerville case. Even in the absence of this controlling precedent, the intention seems manifest. Section 25 is a peremptory command to refrain from indulgence in conduct which has long since been abandoned by nearly all civilized governments, and it necessarily confers the appropriate remedy to redress the legal wrong. Few reported cases are involved in less doubt than our decision in the Somerville case on the effect of section 25 over positions within the scope of the civil service rules. A unanimous court concurred in this language: This section of the statute expressly prohibits those having the power of removal from exercising that power so as to remove from office or employment any person on account of his political opinions or affiliations. When he is removed from his office or employment upon this ground he may seek reinstatement by a writ of mandamus. * ⅜ * Mandamus is the only remedy by which the relator may be reinstated in his office or employment, and in our opinion it is the appropriate remedy to invoke in a case of this character. * * * Section 25 prescribes a rule binding upon public officials, and where one is removed from his office or employment in violation of its provisions, we think it is clear that the Legislature intended that the same remedy should be available to him that is accorded to other employees in the civil service who are removed in violation of law. The courts have frequently compelled reinstatement by means of mandamus where removals in violation of law have been made, even though the statutes prohibiting such removals did not specifically authorize reinstatement by mandamus. * * * The provisions of section 25 are not merely advisory or directory; they are mandatory and were intended to be observed, and where these provisions are disregarded and one who is employed in the civil service is removed, he is entitled to reinstatement" (pp. 42, 43, 44). This explicit language of the opinion is not limited to political removals from the competitive class. It is applicable by its strict terms to any person ” and it refers not only to employments, which include positions in the non-competitive class, but also to offices. Perhaps the range of that decision might not be held to be so broad as to include high appointive officers, for such officials usually are appointed by reason of the political and economic doctrines which they hold. As to them their conception of fundamental theories of government rather than efficiency in the subordinate details of routine administration are considerations which may properly appeal to the appointing power. The statutory refusal to fetter the exempt class by rules and regulations might perhaps be taken as an indication of a legislative intent to vest heads of departments with a discretion, even amounting, perhaps, to a discretion in the partisan political sense, over the appointment and removal of deputies and other confidential assistants whose conception of government similar to those of their superiors, may promote harmonious and efficient administration. However, the opinions in the Somerville and Gallup cases contain the strongest judicial intimation short of an actual decision that the statute applies to all subordinates in the public service.. Whatever may be the legislative intent respecting officers and employees in the exempt class, the language of section 25, as interpreted by this court in the Somerville case, leaves no room for reasonable doubt that it expressly forbids that appointment to or removal from positions within the scope of the rules established pursuant to the Civil Service Law shall be affected or influenced by political opinions or affiliations. In most enlightened communities, opinion is directed toward the view that public employment of a purely administrative or ministerial character bears no legitimate relation to party service, and doubtless section 25 represents the legislative response to this intelligent sentiment. This petitioner, whose position is within the scope of the civil service rules, to the same extent as was Somerville, is plainly entitled, it seems to me, to his day in court to prove, if he can, that his removal was made in contravention of law. If counsels of expediency are to prevail, such doctrine ought logically to be extended to all other claims which may be presented to the courts in large numbers. The fact that the courts are flooded with a great volume of litigation in relation to taxes, negligence and many other forms of action has never been regarded as a reason for excluding those who may be able to prove valid claims and for depriving them of all remedy.

Lehman, Crouch and Loughran, JJ., concur with Hubbs, J.; O’Brien, J., dissents in opinion, in which Crane, Ch. J., and Finch, J., concur.

Orders reversed, etc. (See 268 N. Y. 632.)


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    (Argued April 16, 1935;
    decided May 28, 1935.)

      Samuel Goldstein and Nathan L. Goldstein for appellants.
    The trial court had jurisdiction to take testimony of every fact and circumstance, including physical damage, affecting the market value of claimant’s remaining property resulting from the proper use for which the parcel was acquired, and to which it was put. (Matter of Rapid Transit R. R. Commrs. [Joralemon Si.], 197 N. Y. 81; Matter of City of New York [Lafayette Ave.], 118 Mise, Rep. 161; Evelyn Building Corp. v. City of New York. 257 N. Y. 501; South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301; Matter of Utica R. R. Co., 56 Barb. 456; Matter of N. Y. C. & H. R. R. R. Co., 15 Hun, 63; Matter of Lackawanna Western R. R. Co., 29 Hun, 1; Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423; Newman v. M. E. R. Co., 118 N. Y. 618; Bohm v. M. E. R. Co., 129 N. Y. 576; County of Erie v. Friedenberg, 221 N. Y. 389; Matter of Port Byron-Weedsport State Highway, 136 Mise. Rep. 148; Board of Supervisors v. Beardslee, 140 Mise. Rep. 894; Matter of Public Service Comm., 205 App. Div. 848; 236 N. Y. 527; Matter of Brooklyn Trust Co. v. City of New York, 198 App. Div. 595; 234 N. Y. 520; Matter of City of Binghamton [Leroy St.], 188 App. Div. 58.) The issue involved in the application for a prohibition order was the correct rule of damage to be applied in the condemnation proceeding, and prohibition was not the proper remedy to determine that question. (People ex rel. Woodbury v. Hendrick, 215 N. Y. 339; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463; People ex rel. Mayor v. Nichols, 79 N. Y. 582.) The contracting corporation' was not a party in the condemnation proceeding and, therefore, not a proper party to invoke the remedy of prohibition, nor could the contractor be made a party in this statutory proceeding by being “ vouched in.” (Matter of Low, 208 N. Y. 25; Matter of Public Service Comm., 170 App. Div. 423; Matter of Board of Street Openings, 111 N. Y. 581; N. Y. C. R. R. Co. v. Marvin, 11 N. Y. 276; Matter of Minzesheimer v. Prendergast, 204 N. Y. 272; Matter of Edelmuth v. Prendergast, 144 App. Div. 895; 202 N. Y. 602.)

      Emil N. Baar, Arthur Block and David E. Winer for Culver Contracting Corporation, respondent.
    The contracting corporation was such party to the condemnation proceedings as to warrant the institution of the prohibition proceeding in the Appellate Division. (Liberty Mut. Ins. Co. v. Colon & Co., 260 N. Y. 305; Oceanic Steam Navigation Co. v. Campania Transatlántica Española, 144 N. Y. 663; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Mayor v. Brady, 151 N. Y. 611; Chicago v. Robbins, 67 U. S. 418.) The trial court exceeded its jurisdiction in taking testimony or other proof with respect to physical damage to the parcel and was properly restrained by an order of prohibition. (Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24; People ex rel. Childs v. Extraordinary Trial Term, 184 App. Div. 829; 228 N. Y. 463; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. 45 East 57th St. Corp. v. Chilvers, 210 App. Div. 258; United States v. Jones, 109 U. S. 513; Beekman v. Saratoga, 3 Paige, 72; Mott v. Palmer, 1 N. Y. 564; Canfield v. Ford, 28 Barb. 336; Bell Telephone Co. v. Parker, 187 N. Y. 299; Schneider v. City of Rochester, 160 N. Y. 165; Cincinnati v. Louisville & N. R. Co., 223 U. S. 390; Kahlen v. State, 223 N. Y. 383; Matter of City of New York [Ely Ave.}, 217 N. Y. 45; Matter of Bronx Park Comm., 99 Alise. Rep. 397.) The Appellate Division was right in granting the alternative and final orders of prohibition. (Matter of Rapid Transit R. R. Commrs. [Jorale?non St.], 197 N. Y. 81; Matter of Willcox [Fourth Ave. Subway], 213 N. Y. 18; South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301.)

      Paul Windels, Corporation Counsel (Paxton Blair and Alexander S. Aleinikoff of counsel), for City of New York, respondent.
    Since the justice was holding a condemnation court, his jurisdiction was limited by the Rapid Transit Act (L. 1891, ch. 4), as amended. The sole function of a condemnation court is to make awards for property taken by a public authority, either temporarily or permanently. (Matter of Willcox [Fourth Ave.
      213 N. Y. 218; Matter of New York Municipal Railway Corp. v. Weber, 179 App. Div. 245; Stork v. Philadelphia, 195 Penn. St. 101.) A prohibition order is the appropriate remedy to correct an excess of jurisdiction. No abuse of discretion attended its issuance in the present case. (People ex rel. Sajford v. Surrogate's Court, 229 N. Y. 495; Matter of .Petition of Squire, 125 N. Y. 131; Quimbo Appo v. People, 20 N. Y. 531; Farquar son v. Morgan, [1894] 1 Q. B. 552.) The order appealed from prevented a needless prolongation of the condemnation proceedings. (People ex rel. Sprague v. Fitzgerald, 15 App. Div. 539; 156 N. Y. 689; Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24.) The “ vouching in ” of the contractor by notice in the condemnation proceeding was validly effected, and gave petitioner a locus standi to seek an order of prohibition. (Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Oceanic Steam Navigation Co. v. Campania Transatlántica Española, 144 N. Y. 663; Mayor of New York v. Brady, 151 N. Y. 611; Albany City Sav. Inst. v. Burdick, 87 N. Y. 40; Conkling v. Crosby, 29 Ariz. 60; Wadsworth v. Queen of Spain, 17 Q. B. 171; Worthington v. Jeffries, 10 C. P. 379.) The remedies of the injured party against the contractors protect him adequately. (.Lawrence v. Fox, 20 N. Y. 268; De Cicco v. Schweizer, 221 N. Y. 431; Seaver v. Ransom, 224 N. Y. 233; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; Rigney v. N. Y. C. & H. R. R. R. Co., 217 N. Y. 31; Hale v. Ripton, 234 N. Y. 631; Schnaier v. Bradley Contracting Co., 181 App. Div. 538; Markey v. County of Queens, 154 N. Y. 675; New York Pneumatic Service Co. v. Cox Contracting Co., 201 App. Div. 33; 235 N. Y. 567.)

      Herbert S. Greenburg and Mortimer De Croat for Corson Construction Corporation, amicus curia.

    A court sitting in a condemnation proceeding pursuant to the Rapid Transit Act lacks jurisdiction to make an award for physical damage to property not acquired or extinguished in the proceeding. (Matter of Willcox [Fourth Ave. Subway], 213 N. Y. 218; Doughty v. Hope, 1 N. Y. 79; Matter of Poughkeepsie Bridge Co., 108 N. Y. 483; Matter of Squire, 125 N. Y. 131; Schneider v. City of Rochester, 160 N. Y. 165; Matter of City of Buffalo, 78 N. Y. 362; Matter of Van Etten v. City of New York, 226 N. Y. 483; Matter of City of New York, 56 Mise. Rep. 306; Matter of Thompson, 48 Hun, 618; New York Municipal Ry. Corp. v. Weber, 179 App. Div. 245; Matter of West 58rd St. [Dodger, Inc.], 255 N. Y. Supp. 840.) The claimants are provided with an adequate remedy at law. (Matter of Rapid Transit Commrs., 197 N. Y. 81; Maximilian v. Mayor, 62 N. Y. 160; Evelyn Building Corp. v. City of New York, 257 N. Y. 501; Litchfield v. City of New York, 244 N. Y. 263; Matter of Low, 233 N. Y. 334; Farrell v. Rose, 253 N. Y. 73; Lester v. Mayor, 79 Hun, 479; 150 N. Y. 578; Germenten v. Bradley, 186 App. Div. 868; Veronica Realty Corp. v. Inc., 149 Mise. Rep. 428; Transportation Co. v. Chicago, 99 TJ. S. 635; Schnaier v. Bradley Contracting Co., 181 App. Div. 538; Smyth v. City of New York, 203 N. Y. 106; Sinsheimer v. Underpinning, 178 App. Div. 495; 226 N. Y. 646; Congregation Rodeph Sholem v. Bradley Const. Co., 165 N. Y. Supp. 507; Weber & Heilbroner v. Holbrook, 192 App. Div. 93; Bates v. Holbrook, 89 App. Div. 548; 171 N. Y. 460; Creed v. Hartmann, 29 N. Y. 591.) The order of prohibition is the only adequate remedy available to the contractor. (Quimbo Appo v. People, 20 N. Y. 531; City of Mt. Vernon v. Public Service Comm., 119 Mise. Rep. 561; People ex rel. Sprague v. Fitzgerald, 15 App. Div. 539; 156 N. Y. 689; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24.)
   Finch, J.

This is an appeal from a final order of prohibition, an alternative order of prohibition and a resettled final order of prohibition, granted by the Appellate Division, second department, directed against a justice of the Supreme Court, a claimant in condemnation proceedings and the city of New York, commanding them to desist and refrain from further proceedings with respect to the submission and taking of testimony or other proof concerning physical damage to property owned by the claimant Schwager.

The condemnation proceeding which is the subject of this controversy was instituted by the Board of Transportation of the city of New York, pursuant to chapter 4 of the Laws of 1891, as amended, known as the Rapid Transit Act. The property to be condemned was described in detail in a memorandum attached to the petition for the order of condemnation. The order contained the following provision which defined the jurisdiction of the condemnation court: Ordered that the said petition of the Board of Transportation of the City of New York to have the Compensation which ought justly to be made to the owners of or persons interested in the real property rights,' terms, privileges, franchises or easements, sought to be acquired in this proceeding, ascertained and determined by the Court without a jury, be and the same hereby is granted.”

Subsequently the condemnation proceedings were severed into two separate proceedings, one to deal with the fixing of compensation for parcels taken in fee, the other to deal with the fixing of compensation for permanent and temporary easement parcels. It is only with the latter proceeding that we are concerned.

The owners of these parcels contended that they were entitled to recover, in addition to the fair market value of the permanent and temporary easements, the damages caused by reason of the use to which the property acquired was put. They further contended that for the purpose of proving damage by reason of the use of the damage parcels for the construction of a rapid transit railroad they were entitled to submit evidence of facts and circumstances as to damages which resulted from the construction of the railroad up to the date of the trial and which had the result of decreasing the rental and market value of their premises, in portions of which permanent and temporary easements had been acquired by the city. The admission of this evidence was objected to, the city’s counsel contending that the claimants were not entitled to recover for damages to their remaining property in the condemnation proceeding, but were limited in that proceeding to a recovery of the value of the temporary and permanent easements. The trial court overruled the objections and denied a motion to dismiss the claims for damages. Proper exceptions were taken. The Culver Contracting Corporation, a contractor whose contract required it to assume liability for damages to abutting property, was “ vouched ” into the condemnation proceeding and appeared specially to challenge the jurisdiction of the court to hear and admit testimony of damages to the property of the claimant Mortimer Schwager. Its motion to have the testimony stricken from the record was denied and it took exceptions. Thereafter the contracting corporation instituted the present proceeding, through the service of a petition for an order of prohibition.

The primary question involved in this appeal is whether the condemnation court had jurisdiction to make an award for physical damage to property not acquired or extinguished in the proceeding. The answer to this question is to be found in the statute itself. Section 39 of the Rapid Transit Law (added by Laws 1894, ch. 752, § 9, as amd.) provides for the acquisition of property. It provides (Subd. 1) that there may be acquired by condemnation proceedings “ any real estate and any rights, terms and interest therein, any and all rights, privileges, franchises and easements.” The provisions relating to the jurisdiction of the Supreme Court are found in section 46. It is there made the duty of the Corporation Counsel to publish a notice “ containing a general description of the property to be acquired or affected.” (Laws 1915, ch. 604, § 2.) Owners of “ any property taken or extinguished ” are required to file claims with the County Clerk. The duties of the court are thus defined: “ It shall be the duty of the justice trying any such proceeding to view the property to be thereby acquired or extinguished, and if he shall deem a view of the property in the vicinity of the property to be acquired or extinguished necessary or useful, he shall make such view.”

Provision is made for the ascertainment of damages for the taking ” of property or the “ extinguishing ” of easements and other interests; but no provision is made for the ascertainment of physical damages of property which is not taken or subjected to an easement. It is true that in the early part of the section reference is made to property “ acquired or affected.” The context shows, however, that “ affected ” does not mean damaged ” but means “ subjected to temporary or permanent easements or permanently diminished in value.”

That the condemnation statute is the measure of the court’s jurisdiction has been long established. (Matter of Poughkeepsie Bridge Co., 108 N. Y. 483; Matter of Squire, 125 N. Y. 131; Matter of Willcox [Fourth Ave. Subway], 213 N. Y. 218.)

In Matter of Willcox (supra) the abutting owner sought an award for the loss of lateral support. It was held that the city had the right to determine what property it wished to condemn and that the condemnation court was limited to making awards for the property taken. It was said: “ The proceeding is instituted to acquire or extinguish the property (as defined by the statute) described and specified in the petition and maps or plans and memoranda filed referred to by it and not any other. Such property, and not any other, is acquired or extinguished by it. * * * It is that property and that alone which the city may seise in fee, enter upon and become liable in the 'proceeding to the respective owners for the true and respective values of, and the commissioners of appraisal are to ‘ ascertain and determine the compensation which ought justly to be made by the said city to the owners or persons interested in the property acquired or extinguished by said proceeding.’ Their report or reports can relate only to the property indicated on the map or plan and memoranda and described in the petition.” (Italics interpolated.)

In the case at bar, as in the Willcox case, maps, plans and memoranda were prepared and annexed to the petition for condemnation. The property which suffered the physical damage, however, as distinguished from property rights acquired, is not mapped or described, nor is there any provision for the condemnation of easements of lateral support. On the contrary, the petitioner expressly excepts such easements. The city has the right to determine what property it wishes to condemn. It has decided to condemn the fee of the street and certain temporary and permanent It has failed to condemn the property herein involved or the easement of lateral support appurtenant to it. The remedy sought in a condemnation proceeding is purely statutory. The only question presented is whether the injury which the claimant suffered is within the statute. (Matter of Squire, supra.) The difference in mode of procedure for property taken in condemnation and for damages inflicted over and above the value of the property taken involves a difference in substance. Between taking or extinguishing property upon paying its value in condemnation, the title of the property going to the State, and simply damaging property, the title remaining in the owner, lies a distinction well marked in the jurisprudence of this State. Not only must the damages in the former be determined by commissioners or a judge and in the latter by a jury, but the measure to be applied is different. In the former full value must be given, while in the latter much of the damage suffered during the execution of a public improvement if not caused by want of care in its execution may go unredressed as a normal incident of city life. (Farrell v. Rose, 253 N. Y. 73.) In consequence, the condemnation court lacks jurisdiction to make an award for damages to such uncondemned property.

It is true that the Willcox case involved one having rights only as an abutter, whereas the city has acquired from the claimant herein permanent and temporary easements in the real estate which is part of the parcel on which the damaged building is located. The principles announced in that case, however, are broad and fundamental and are not limited in their application to abutting owners.

The claimant relies on the rule that where a portion of a person’s property is condemned he is entitled to recover for so-called consequential damages to the remainder of his property by reason of the use of the portion acquired. The rule thus broadly stated is a fair one and only recently has been reiterated. (Matter of City of New York [West 10th St.], 267 N. Y. 212.) But the claimant misconstrues the rule and the meaning of the term consequential damages ” as used in condemnation proceedings. Not all damages which flow from the use to which the condemned property is put can be recovered in condemnation proceedings. It is only for the taking by way of fee or easement that payment must be made in condemnation. If the property taken is to be used in such manner as permanently to interfere with or diminish the value of the remaining property, as in South Buffalo Ry. Co. v. Kirkover (176 N. Y. 301), where a steam railroad was to run over the strip taken, or as in the elevated railroad cases in New York city (Story v. New York El. R. R. Co., 90 N. Y. 122; Kane v. New York El. R. R. Co., 125 N. Y. 164; Bohm v. Metropolitan El. Ry. Co., 129 N. Y. 576; American Bank Note Co. v. New York El. R. R. Co 129 N. Y. 252), where the easements of light, air and access appurtenant to the abutting houses and property were cut off, amounting to a deprivation of property within the meaning of the Constitution, then the use to which the property taken is to be put must be considered in ascertaining the damages in the condemnation proceeding. Thus, the court in the Kirkover case said: It was held in the Story Case (90 N. Y. 122) that these easements became at once appurtenant to the land, forming an integral part of the estate and constituted property within the meaning of the State Constitution (Art. 1, § 6), which prohibits the taking of private property without just compensation. It therefore followed that in the trial of the elevated railroad cases any evidence was competent tending to show injury to these easements of light, air and access, as they were property. A similar rule of evidence is applicable to the case before us ” (p. 307). In the case at bar, however, the loss of lateral support is not a natural and probable consequence of the use, as limited by the petition, to which the property is to be put, that is, as a rapid transit railroad; nor is it necessarily a result of the construction of a subway. This is borne out by the following provision in the contract between the city and the contractor: The Contractor expressly admits and covenants that the drawings and specifications and other provisions of this contract, if the work be done without fault or negligence on the part of the Contractor, do not involve any danger to the foundations, walls or other parts of adjacent, abutting or overhead buildings, railroads, structures or surfaces.” The city realized that injuries might result to adjoining property as a result of a failure properly to shore up the sides of the subway during the construction period or for innumerable other reasons, and, therefore, provided that the contractor should be hable for such injuries. But these injuries do not involve the taking of property.

The cases of South Buffalo By. Co. v. Kirhover (supra) and Matter of Board of Rapid Transit Railroad Commissioners [Joralemon St.] (197 N. Y. 81) are readily distinguishable. In the Kirhover case it was decided that where land was condemned for railroad purposes the owner of the land was entitled to recover the market value of the premises actually taken and also any damages resulting to the residue by reason of the permanent use to which the part taken, a strip running through the land, was put. As stated in Rasch v. Nassau Electric R. R. Co. (198 N. Y. 385, 389): “ The rule in the Kirhover case is not to be misconstrued. Of course, it does not include injuries from the improper operation of the railroad. Those can be restrained at the suit of the party aggrieved, or damages may be recovered for them. But the rule does include all damages which the proper operation of the railroad entails.” In the Joralemon Street case, it is true, the factual situation was much like that found in the case at bar, but the legal problem was different. The question of jurisdiction was not raised. The problem before the court was not whether physical damages could be recovered in condemnation proceedings where such damages did not flow directly from a taking of property, but whether such damages could be recovered at all. In a concurring opinion, Chief Judge Cullen used the following language in reference to the physical damages: “ I do not know that there is any objection to their being determined in a condemnation proceeding where both parties consent and the damage has actually occurred, but that seems hardly the most appropriate proceeding ” (p. 112). (Italics interpolated.) This court, in Matter of Willcox (213 N. Y. 218), said of Matter of Board of Rapid Transit R. R. Comrs. (Joralemon St.) (197 N. Y. 81): The decision in Matter of Rapid Transit R. R. Comrs. (197 N. Y. 81) is not in conflict with our present conclusion because the question here was not there presented by the record, arguments or brief of counsel” (pp. 225, 226).

The case of Evelyn Building Corp. v. City of New York (257 N. Y. 501) is in accord with these views, since it involved an action for an injunction to restrain a continuing trespass upon the plaintiff’s real property, to compel its restoration to its former condition and for damages and not a claim in a condemnation proceeding.

The appellant asserts that even if the court erred in admitting evidence of physical damages, nevertheless the Appellate Division lacked the power to grant an order of prohibition. The error, it is claimed, is merely one involving the method of fixing damages, curable by appeal, and, therefore, the order does not lie. The order of prohibition is provided for by the Civil Practice Act (§§ 1341-1355). These sections represent the codification of the common law writ of prohibition. The change is only of form and the order continues to be governed by the common law as to its nature, function and the facts governing its issuance. The remedy is an extraordinary one which lies within the discretion of the court. Although ordinarily employed to restrain a subordinate tribunal from entertaining a cause or proceeding over which it has no jurisdiction (People ex rel. Safford v. Surrogate’s Court, 229 N. Y. 495; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24), it may be exercised also to enjoin a lower court from exceeding its authorized powers in a proceeding over which it has jurisdiction. (Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. Court of General Sessions, 185 N. Y. 504.) (See People ex rel. Livingston v. Wyatt, 186 N. Y. 383, at p. 393.) The writ does not issue where the grievance can be redressed by ordinary proceedings at law or in equity or merely to prevent error which may be readily corrected on appeal. (People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Hummel v. Trial Term, 184 N. Y. 30; People ex rel. Livingston v. Wyatt, supra; People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463.) It is not available ordinarily as a method of premature appeal. Nevertheless, where the lower court is exceeding its jurisdiction and. the writ or order furnishes a more effective remedy, it may be availed of although the error might be corrected by appeal. The case at bar comes well within this rule.

In the case of People ex rel. Safford v. Surrogate’s Court (supra, p. 497) the court, determining that prohibition was the proper remedy, said: The jurisdiction of the Surrogate is the creation of statute. If not conferred upon him it does not exist.” Similarly, the jurisdiction of a condemnation court is purely statutory, the Supreme Court having no inherent jurisdiction over such proceedings. (Matter of Squire, supra; Matter of Poughkeepsie Bridge Co., supra; Matter of Willcox, supra.)

As has been previously pointed out, the Rapid Transit Act, under which this condemnation proceeding was instituted, does not provide for the recompense of adjoining owners who suffer injury to their property, over and above the value of property taken or extinguished, as the result of the construction of a subway. Such recovery must be sought in an independent action against the city or the party responsible, and either party may have a trial by jury. In a condemnation proceeding the court lacks the jurisdiction to consider such damages (Matter of Willcox, supra) unless the parties acquiesce. (Matter of Board of Rapid Transit R. R. Comrs. [Joralemon St.], supra.) When the court, over objection, admits evidence which is directed only to prove such damages, it is clearly exceeding its jurisdiction. True, objections have been made and exceptions taken by the aggrieved parties and the question is subject to review on appeal. The court, however, was overstepping its bounds. A mass of testimony was being taken, unnecessary expense incurred, and the trial needlessly prolonged. Under the circumstances application for an order of prohibition was proper and the Appellate Division in its discretion possessed the right to grant the order. Such exercise of discretion is not reviewable by this court. (Cf. People ex rel. Cuvillier v. Hagarty, 238 N. Y. 621.)

The Culver Contracting Corporation was a proper party to invoke the remedy of prohibition, although it was not a proper and necessary party to the condemnation proceedings. Familiar is the common law rule that where an indemnitor is vouched in ” to an action or proceeding, a judgment against the party indemnified in such action or proceeding is binding upon the indem-nitor. (Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Oceanic Steam Nav. Co. v. Campania Transatlantica Espanola, 144 N. Y. 663.) (See Murphy v. City of Yonkers, 213 N. Y. 124; Chicago v. Robbins, 67 U. S. 418; Cohen, Impleader: Enforcement of Defendants’ Rights Against Third Parties [1933], 33 Columbia Law Review, 1147.) “ No particular form of words is necessary in order to constitute notice in such cases, nor is it even necessary to give written notice. It is sufficient that the party against whom ultimate liability is claimed is fully and fairly informed of the claim and that the action is pending with full opportunity to defend or to participate in the defense. If he then neglects or refuses to make any defense he may have, the judgment will bind him in the same way and to the same extent as if he had been made a party to the record.” (Oceanic Steam Nav. Co. v. Campania Transatlantica Espanola, supra, at p. 665.)

An indemnitor who has notice and an opportunity to defend and fails to do so is bound by the result of the action, although the notice is not in writing. The Culver City Contracting Corporation had agreed to indemnify the city for any damage to abutting buildings. It was given notice that a claim was being made for such damages. Therefore, if the claimant were successful the judgment, decree or award for such damages rendered in its favor would be binding on the Culver Company. It matters not that the Culver Company was not a party to the condemnation proceedings and, therefore, the judge could not have signed a decree directed against the contractor. A judgment, decree or award against the city, specifying an award for physical damages to abutting property, would be binding on the vouched in ” contractor. Since the Culver Contracting Corporation, the contractor, was such party as would have been bound by a judgment, it was also such party as might properly bring this proceeding in prohibition.

The question of whether the city is liable for the damages herein discussed is not now considered. That question may be raised in an independent action against the city, but it is in no way involved in this decision, which is limited to the determination that such damages cannot be proven, over the city’s objection, in condemnation proceedings under the Rapid Transit Act.

The orders should be affirmed, with costs. (See 268 N. Y. 719.)

Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Orders affirmed.


author: Crane, Ch. J.

text:
    Henry J. Gucker, Appellant, v. The Town of Huntington et al., Respondents. Christina A. Koch, Appellant, v. The Town of Huntington et al.. Respondents. Ella R. Bunce et al., Appellants, v. The Town of Huntington et al., Respondents. Albert Gucker, Appellant, The Town of Huntington et al., Respondents.

      (Argued April 25, 1935;
    decided May 28, 1935.)

      Thomas F. Magner for appellants.
    Plaintiffs’ actions to remove as clouds on title the quitclaim deeds were the proper and the only remedy for the plaintiffs to obtain redress for the deprivation of their riparian rights. (Remington Paper Go. v. O’Dougherty, 81 N. Y. 474; Ward v. Dewey, 16 N. Y. 519; Crooke v. Andrews, 40 N. Y. 547; Radcliff v. Rowley, 2 Barb. Ch. 23; Shaw v. Dwight, 27 N. Y. 244.) Riparian rights were possessed by the plaintiffs as upland owners. (Matter of City of

      New York, 168 N. Y. 134; Barnes v. Midland R. R. Terminal Go., 193 N. Y. 378; 218 N. Y. 91; People ex rel. Gratwick v. Commissioners of Land Office, 202 App. Div. 240; Stewart v. Turney, 203 App. Div. 486; Hinkley v. State, 234 N. Y. 309; Tiffany v. Town of Oyster Bay, 234 N. Y. 15; People v. Mould, 37 App. Div. 35; Matter of Jaquino v. Ormond, 217 App. Div. 76; White v. Nassau Trust Co., 168 N. Y. 149; Sage v. Mayor, 154 N. Y. 61; Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79.) The action of the town in filling in the sand bar was a trespass against the plaintiffs, as well as an unlawful act. (Matter of Public Service Comm. [Montague 224 N. Y. 211; Matter of City of New York, 168 N. Y. 134; People ex rel. Palmer v. Travis, 223 N. Y. 150; Matter of City of New York [Jamaica Bay], 256 N. Y. 382; Montgomery v. Portland, 190 TJ. S. 89; Philadelphia Co. v. Stimson, 223 TJ. S. 605; St. Louis v. Rutz, 138 TJ. S. 226; Yates v. Milwaukee, 10 Wall. 497; Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79.) The action of the town in filling in the sand bar extended the westerly boundary of plaintiffs’ uplands to the high-water mark in the navigable waters on the exterior of the sand bar in front of their respective uplands. (Mulry v. Norton, 100 N. Y. 424.)

      Otho S. Bowling and Isaac R. Swezey for Town of Huntington, respondent.
    The actions do not involve the point whether plaintiffs’ riparian rights have been adversely affected. (Tiffany v. Town of Oyster Bay, 234 N. Y. 15.) The raising of the bar did not transfer its title. (.Lowndes v. Huntington, 153 U. S. 1.) It makes no difference whether the words in the Appellate Division opinion are consistent or inconsistent. The opinion is no substantial part of the record. (Koehler v. Hughes, 148 N. Y. 507.)

      William M. Sullivan for Mary C. DeBrabant, respondent.
    The determination herein is not res adjudicata as to an action for damages or for the restoration of appellants’ alleged riparian rights. (Koehler v. Hughes, 148 N. Y. 507; Donahue v. N. Y. Life Ins. Co., 259 N. Y. 98; Silberstein v. SOberstein, 218 N. Y. 525.)
   Crane, Ch. J.

The plaintiffs own the upland at Little Neck in the town of Huntington, facing on Centerport Harbor. Their property faces to the west, Centerport Harbor running about northwest and southeast. They own to high-water mark, for Centerport Harbor, a branch of Long Island Sound, is tidal water. The plaintiffs have riparian rights, which means that they have access to navigable water in front of their property. No person or even the town of Huntington can obstruct or interfere with these riparian rights.

In front of the plaintiffs’ premises, a short distance out from shore, there was a sand bar, described in the findings of the trial court as follows: Northport Bay is an arm of the sea, the tide ebbs and flows therein, and the waters of same are navigable. * * Under the waters of said bay is a sand bar [which] * *, until the same was filled in as hereinafter set out, was and from time immemorial had been under the waters of the bay, and during normal high tide was covered by water sufficient so that boats of light draft could float thereover. * * * It had always been below the high water and was unoccupied and incapable of occupation.”

The law applicable to such a situation is not in dispute. The town of Huntington owned the land under water, including the sand bar, but this gave the town no more right to raise the sand bar above water and make it dry land than it would have the right to fill in the entire harbor and make it dry land if navigation or riparian rights are thereby destroyed. The plaintiffs had the riparian rights to go out over this sand bar at high tide with their boats to reach the navigable part of the harbor. There seems to be no answer to this contention, and all the authorities of this State sustain this right. (Tiffany v. Town of Oyster Bay, 234 N. Y. 15; Matter of City of New York, 168 N. Y. 134, 143; Hinkley v. State, 234 N. Y. 309, 318; Montgomery v. Portland, 190 U. S. 89, Matter of Public Service Comm. [Montague St.], 224 N. Y. 211.)

The town of Huntington deliberately and intentionally pumped sand and gravel on this sand bar, raising it to the height of one foot above high water, and extending it north and south parallel to the plaintiffs’ upland for a long distance. The answer to the plaintiffs’ objection is If you want to reach navigable water in front of your property, row down a quarter of a mile and go round the point of the sand bar which we have filled in.” This is no legal answer. The plaintiffs, by the law of this State, had riparian rights in front of their property, that is, they could go out in their boats or by pier to navigable water. The town cannot prevent this as it has attempted to do. It denies their riparian rights, says that they have no interest whatever in this built-up land, and has forced them off the property. The town has turned water into land, and by so doing attempts to destroy the plaintiffs’ access to navigable water, or their 'property interest in and over the land which it has created.

The trial court further found: “ 24. That pursuant to such agreement defendants DeBrabant and the Town of Huntington caused such fill to be made and thereby the surface of the portion of said sand bar so indicated was raised to the height of one foot above the waters of the bay at mean high tide.” Inconsistent with this finding the trial court also made the following findings:

26. That said sand bar when so filled in did not deprive plaintiff of access to the deeper waters of the bay.

27. That such sand bar as so filled in did not deprive plaintiffs of access to the waters of the bay actually navigable.”

And as a conclusion of law: 7. That the filling in of said sand bar did not deprive plaintiff of any of his rights as riparian owner.” The trial court must have had in mind that the plaintiffs had the privilege of taking their boats down to about a quarter of a mile to go around the fill, because it is beyond dispute that the plaintiffs cannot reach navigable water directly in front of their shore. The exhibits themselves indicate this impossibility.

The Appellate Division affirmed these findings of the trial court and also its judgment, but wrote an opinion indicating disagreement with these conclusions, for the court said: “It is undisputed that the said sand bar, during the period of its formation and up until January 30, 1930, had been of gradual and imperceptible growth, and, until 1930, was always below high water. It appears that, in 1930, the defendant DeBrabant, with the consent of the Town of Huntington, dredged from the bottom of the bay outside the sand bar thousands of cubic yards of sand and gravel, which were deposited on top of the bar until it was raised, for an agreed distance, to a height of at least one foot above high water mark; as a result of which plaintiffs were unable to navigate motor boats, sail boats and row boats over the bar from their uplands to the deeper waters of the bay, as they had previously done, and were thereby deprived of their rights as riparian owners.” (241 App. Div. 494, 495, 496.) The only answer the respondents have to this opinion of the Appellate Division is, to say that “ We think this was an inadvertence, a case of not too careful editing.”

We must, therefore, conclude that, in spite of the affirmance, the Appellate Division was of the opinion that the plaintiffs were deprived of their riparian rights by the action of the town of

Why then is it that the plaintiffs have not succeeded in having these riparian rights declared to exist. Why have the courts not given them the right to cross this sand fill to reach high water? It is said they have chosen the wrong remedy, and’ that another action must now be brought to establish these riparian rights which the Appellate Division say exist.

It seems that the town of Huntington and an upland owner, named DeBrabant, whose shore front approached the sand bar at its northern extremity, entered into an agreement regarding this fill. DeBrabant claims to have had some property rights in this sand bar and these were released and quitclaimed to the town of Huntington. These deeds were of record, and the town of Huntington commenced operations and carried them out, acting under the claim of ownership through these deeds. The trial court so found:

15. That pursuant to the agreement aforesaid, on or about the 30th day of January, 1930, defendant DeBra-bant duly signed, acknowledged and delivered to the Town of Huntington a deed in quitclaim form, releasing to the Town of Huntington any right, title and interest which she might have in such sand bar. * * * ”

That the description'of the sand bar in said deeds was as follows: Together with all the right, title and interest of the party of the first part to that certain bar or strip of land to the end thereof projecting into Centerport Inlet and Harbor, and lying in front of and adjacent to the land above described.”

The trial court also found: “ That pursuant to such agreement defendants DeBrabant and the Town of Huntington caused such fill to be made and thereby the surface of the portion of said sand bar so indicated was raised to the height of one foot above the waters of the Bay at mean high tide.”

Thus, when the town filled in this land it claimed the right to do so under these deeds and agreement. How did the plaintiffs know when they commenced these actions that the court would decide that the deeds conveyed no title, as the town owned the land under water by reason of colonial grants? The plaintiffs properly came into equity seeking to set aside the title claimed from DeBra-bant and others, and to establish that the deeds of record gave the town no power to take their riparian rights. Being in equity, and the court undertaking to determine the rights under these deeds and the title of the town, there is no reason that I can see why the court should not have completed its work and decided the plaintiffs’ riparian rights in the land over the bar as it now exists. What is to be gained by requiring another lawsuit? What reason can there possibly be given for sending these litigants back to some other form of action to do what should have been done upon this evidence? Repeatedly have we said that rights of property were more sacred than mere forms of procedure, and that the pathway to the courthouse is not as important as what happens when we get there. Equity had jurisdiction of this case. It had before it all the evidence and all the parties. The riparian rights of the plaintiffs had been established and found by the Appellate Division, at least the court said so. A decision to this effect could have been made. That this form of action was appropriate under these circumstances, see Remington Paper Co. v. O’Dougherty (81 N. Y. 474); Crooke v. Andrews (40 N. Y. 547); Ward v. Dewey (16 N. Y. 519, 522).

In each action, the judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

Httbbs, and Finch, JJ., concur; Lehman, O’Brien and Crouch, JJ., dissent.

Judgments reversed, etc.


author: Htjbbs, J.

text:
    Agnes M. Robertson, Appellant, v. George J. Zimmermann, as Mayor of the City of Buffalo, Respondent.

      (Argued April 29, 1935;
    decided May 28, 1935.)

      Howard R. Sturtevant and Mark N. Turner for appellant.
    The act creating the Buffalo Sewer Authority violates the provisions of section 10 of- article 8 of the State Constitution in that it attempts by indirection to permit the bonded indebtedness of the properties of the city of Buffalo to exceed ten per cent of the assessed valuation thereof. (Newell v. People ex rel. Phelps, 7 N. Y. 9; Kenwell v. Lee, 261 N. Y. 113; People ex rel. Town of Pelham v. Village of Pelham, 215 N. Y. 374.) The statute is in direct violation of section 6 of article 1 of the State Constitution and of the Fourteenth Amendment to the Constitution of the United States, in that it deprives the city of Buffalo of its property without due process of law and without just compensation. (People ex rel. Rodgers v. Color, 166 N. Y. 1; People ex rel. Yost v. Becker, 203 N. Y. 201.) The statute is unconstitutional for the reason that it violates section 2 of article 12 of the State Constitution. (Matter of Mayor of New York [Elm St], 246 N. Y. 72; City of New York v. Village of Lawrence, 250 N. Y. 429; Browne v. City of New York, 241 N. Y. 96.) The city of Buffalo is deprived of the privilege of referendum as provided by section 412 of the city charter. (Local Law, No. 4,1927; Local Laws, 1932, p. 21.)

      Gregory U. Harmon, Corporation Counsel (Fred C. Maloney and Elmer S. Stengel of counsel), for respondent.
    Chapter 349 of the Laws of 1935 was not adopted in contravention of the provisions of section 2 of article 12 of the State Constitution. (Browne v. City of New York, 241 N. Y. 96; Admiral Realty Co. v. City of New York, 206 N. Y. 110; Matter of McAneny, 232 N. Y. 377; Tenement House Department v. Moeschen, 179 N. Y. 325; 203 U. S. 583; Health Department v. Rector of Trinity Church, 145 N. Y. 32; People ex rel. Unger v. Kennedy, 207 N. Y. 533; McGrath v. Grout, 171 N. Y. 7; Adler v. Deegan, 251 N. Y. 467; City of New York v. Village of Lawrence, 250 N. Y. 429; Metropolitan Board of Health v. Heister, 37 N. Y. 661.) The act does not affect the property, affairs or government of the city of Buffalo. (People ex rel. Simon v. Bradley, 207 N. Y. 592; Matter of Bergdorf, 206 N. Y. 309; People ex rel. Central Trust Co. v. Prender-

      gast, 202 N. Y. 188; People v. Tweed, 63 N. Y. 202; People ex rel. McLean v. Flagg, 46 N. Y. 401; City of Worcester v. Worcester Con. St. Ry. Co., 196 U. S. 539; City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394; MacMullen v. City of Middletown, 187 N. Y. 37.) The provisions of the act do not contravene the Fourteenth Amendment to the Federal Constitution or section 6 of article 1 of the State Constitution. (City of New York v. Village of Lawrence, 250 N. Y. 429; Darlington v. City of New York, 31 N. Y. 164; People v. Morris, 13 Wend. 322; Proprietors of Mt. Nope Cemetery v. City of Boston, 158 Mass. 509; Meriwether v. Garrett, 102 U. S. 472; City of Trenton v. State of New Jersey, 262 U. S. 182; Hunter v. Pittsburgh, 207 TJ. S. 161; Carson v. Brockton Sewerage Comm., 182 TJ. S. 398; Dunbar v. City of New York, 251 TJ. S. 516; Valley Farms Co. v. County of Westchester, 261 TJ. S. 155; Matter of Bronx Parkway Comm. v. Hylan, 119 Mise. Rep. 785; 206 App. Div. 688; 236 N. Y. 593.) The issuance of obligations by the Authority will not be in contravention of section 10 of article 8 of the State Constitution. (People v. Draper, 15 N. Y. 528; Metropolitan Board of Health v. Heister, 37 N. Y. 661; Matter of McAneny, 198 App. Div. 205 ; 232 N. Y. 377; Matter of Bronx Parkway Comm. v. Hylan, 119 Mise. Rep. 785; 236 Y. 593; Smith v. Havens Relief Fund Society, 44 Mise. Rep. 594; 190 N. Y. 557; People ex rel. Simon v. Bradley, 207 N. Y. 592; Adams v. E. R. S. Institution, 136 N. Y. 52; Levy v. McClellan, 196 N. Y. 178; People ex rel. McLean v. Flagg, 46 N. Y. 401.) No constitutional guaranty of the privilege of a referendum has been violated. (City Home Rule Law, § 21, subd. 2; Cons. Laws, ch. 76; Laws of 1933, ch. 782.)

      Charles B. Lauren and Arnold Frye for E. J. Dimock, amicus curice.

    The Legislature had the constitutional power to create the Buffalo Sewer Authority. (Matter of Thirty-fourth St. R. R. Co., 102 N. Y. 343; People ex rel.

      Simon v. Bradley, 207 N. Y. 592; People ex rel. McLean v. Flagg, 46 N. Y. 401; People v. Tweed, 63 N. Y. 202; People ex rel. Morrill v. Supervisors, 112 N. Y. 585; Matter of McAneny, 232 N. Y. 377; Astor v. Mayor of New York, 62 N. Y. 567; Matter of Bronx Parkway Comm. v. Hylan, 119 Mise. Rep. 785; 206 App. Div. 688; 236 N. Y. 593; People ex rel. Bd. of Commrs. v. Supervisors of Oneida County, 170 N. Y. 105; People ex rel. Wood v. Draper, 15 N. Y. 532.) The city of Buffalo will not become indebted within the meaning of section 10 of article 8 of the State Constitution by the issuance of bonds by the Buffalo Sewer Authority pursuant to chapter 349 of the Laws of 1935. (Tranter v. Allegheny County Authority, 316 Penn. St. 65; Shelton v. City of Los Angeles, 206 Cal. 544; Department of Water & Power v. Vroman, 218 Cal. 206; California Toll Bridge Authority v. Wentworth, 212 Cal. 298; California Toll Bridge Authority v. Kelly, 218 Cal. 7; State v. Regents of University of New Mexico, 32 N. M. 428; State ex rel. Kaufman v. Davis, 59 N. D. 191; Fanning v. University of Minnesota, 183 Minn. 222; Baker v. Carter, 165 Okla. 116; Caldwell Bros. v. Board of Supervisors, 176 La. 825; State v. Regents of University System of Georgia, 175 S. E. Rep. '567; Board of Regents of University of Arizona v. Sullivan, 42 Pac. Rep. [2d] 619; Silkman v. Board of Water Commrs., 152 N. Y. 327; New York University v. American Book Co., 197 N. Y. 294; Kleinstein v. Gonsky, 134 App. Div. 266.)
   Htjbbs, J.

This is a taxpayer’s action to secure a permanent injunction restraining the Mayor of the city of Buffalo from appointing a Board to be known as “ Buffalo Sewer Authority ” and from taking any other action pursuant to chapter 349 of the Laws of 1935 upon the ground that the act is unconstitutional.

The act in question creates a body corporate, to be known as “ Buffalo Sewer Authority,” composed of five members, all residents of the city of Buffalo, to be appointed for specified terms by the Mayor of the city, subject to confirmation by the Common Council. Its corporate existence is limited to five years, and thereafter until all its liabilities have been met and its bonds have been paid in full or such liabilities or bonds have otherwise been discharged.” Upon the expiration of its corporate existence all its rights and properties are to pass to the city of Buffalo. It is given complete jurisdiction, control, possession and supervision of the existing sewer system and all facilities for disposal of storm water and sewage of the city of Buffalo, authority to construct such additional sewers, disposal or treatment plants and other appliances and structures as will in its judgment “ provide an effectual and advantageous means for relieving the Niagara river, Buffalo river and Lake Erie from pollution by the sewage and waste of the city,” and upon completion of the project to establish sewer rents to be collected from all real property served by its facilities. Such sewer rents are to constitute a hen upon the real property served, to have the same priority and superiority as the hen of the general tax of the city, which hen may be foreclosed by action in the same manner as a tax hen. It is given authority to issue bonds which are not to constitute a debt of the State or of the city but are to be payable only from funds of the sewer authority.

The enactment of chapter 349 of the Laws of 1935 is a result of an order of the State Commissioner of Health made on or about March 22, 1935, after a pubhc hearing directing the city of Buffalo to proceed with necessary sewage and sewage disposal plant construction to elimi-. nate sewage pollution contributed by the city to Niagara river and Lake Erie. The Common Council of the city favored its enactment for the reason, as stated in a resolution adopted by that body, that the city because of its constitutional debt limitation cannot finance this undertaking by bond issue.”

Laws of 1935, chapter 349, section 8, subdivision 1, reads in part:

“ 1. It is hereby found and declared that the creation of the authority and the carrying out of its corporate purposes is in all respects for the benefit of the people of the state of New York, for the improvement of their health and welfare, and is a public purpose, and the authority shall be regarded as performing a governmental function in the exercise of the powers conferred upon it by this act.”

The Special Term granted a temporary injunction pending a hearing upon a motion for judgment on the pleadings and upon return of the motion granted judgment dismissing the complaint. The appeal is taken directly to this court pursuant to subdivision 3 of section 588 of the Civil Practice Act.

It is contended that the act, by transferring to the jurisdiction and control of the Sewer Authority the existing sewer system of the city, violates section 2 of article XII of the State Constitution, being part of the Home Rule Amendment, so called, which reads as follows:

“ § 2. The legislature shall not pass any law relating to the property, affairs or government of cities, which shall be special or local either in its terms or in its effect, but shall act in relation to the property, affairs or government of any city only by general laws which shall in terms and in effect apply alike to all cities except on message from the governor declaring that an emergency exists and the concurrent action of two-thirds of the members of each house of the legislature.”

• The act was not passed as an .emergency measure by the concurrent action of two-thirds of each house of the Legislature or on a message from the Governor.

The question presented is whether the act relates to the property, affairs or government ” of the city and is special or local either in its terms or effect.

It is immediately apparent that the prime purpose of the Legislature in enacting the law was not to deprive the city of any of its powers or prerogatives under the Home Rule Amendment but rather to afford a means of carrying out the order of the State Commissioner of Health which order was designed to eliminate a serious menace to the health of the people of the State generally and particularly the communities, including the city of Buffalo, which are obtaining their water supply from the waters polluted by untreated sewage from the city of Buffalo. The record indicates that this pollution has affected water supplies taken from Lake Erie, the Niagara river and Lake Ontario.

In Matter of Mayor of City of New York (Elm Street) (246 N. Y. 72, 76) this court pointed out the effect of the Home Rule Amendment upon the previously established test as to whether a law was on the one hand special or local or on the other hand general. We there said: “ We are no longer confined to the inquiry whether an act is general or local in its terms.’ We must go farther and inquire whether it is general or local ‘ in its effect.’ ” That case well illustrates the type of legislation held to be local in effect, that is, an act which though general in its terms has the result of affecting only a single municipality. An act designed to remedy conditions affecting the public generally, though imposing restrictions or obligations upon a particular municipality as a means of affecting the larger purpose can hardly be said to be local in its effect. Not every act so burdening or limiting a municipality is local in its effect. (Adler v. Deegan, 251 N. Y. 467.)

Speaking of the Home Rule Amendment in City of New York v. Village of Lawrence (250 N. Y. 429, 435) we said: “ Enlargement of legislative powers by the city in relation to their ‘ property, affairs or government ’ is balanced by restriction of the powers of the Legislature within the same field. In relation to such matters the Legislature may not pass any law which is ‘ special or local, either in its terms or in its effect,’ except on message from the Governor declaring that an emergency exists.”

While the act here in question as an incident of its plan for the elimination of poEution of Niagara river, Buffalo river and Lake Erie by sewage of the city of Buffalo necessarily by its terms refers frequently to that city, its officers and its existing sewage system and as a further incident thereof provides for a temporary transfer to the Sewer Authority of control of such sewage system, its effect is more than local and its primary purpose is not to protect the city and its inhabitants only, but also those other communities using water affected by the pollution as weU as the public generally. While the act does, in the interest of the public, interfere with the control by the city of Buffalo of its sewage system and to that extent does relate to the property of the city, it cannot be held to be special or local either by its terms or effect.

As stated in City of New York v. Village of Lawrence (supra), we have yet “ found no case where the words ‘ relating to the property, affairs or government of cities ’ have been held to include legislation which does not deal directly with the internal affairs of a city or the functions of its officers” (p. 443).

The principle involved is not different from that discussed in Adler v. Deegan (supra, pp. 476, 481, 491). We there had under consideration the Multiple Dwelling Act, dealing with the conditions under which tenements shaU be constructed with reference to Eght, air, fire protection, etc. We there said: The protection of the public health and safety is one of the acknowledged purposes of the police power of the State * * *. The provision is for the benefit of aE who have occasion to use the dwelhng and not for the city of New York and its inhabitants alone * * *. The fact is that the State Legislature, in drafting those provisions which subsequently, by the vote of the people, became the Home Rule measure in the Constitution knew and reaEzed that the words, ‘ property, affairs or government of cities,’ did not include health, measures * * *. The test is rather this, that if the subject be in a substantial degree a matter of state concern, the Legislature may act, though intermingled with it are concerns of the locality.”

It is true as urged by appellants, that the Multiple Dwelling Act (Cons. Laws, ch. 61-A) did not take from the city the control of any city property, but it did take from the city, by the imposition of certain requirements, the establishment of budding regulations contrary to those requirements and was thereby a positive interference with the exercise of powers otherwise granted by the Home Rule Amendment. We so recognized when we said in Adler v. Deegan (supra):The power was subject in its creation to the overriding action of the State ” (p. 488).

In this instance that over-riding action takes from the city temporarily its control of its sewer system and for a like period estops the city or any other corporation or agency from the construction, operation or maintenance of any sewage system within the city but only for the protection of the public from a serious menace which requires the exercise by the State of its sovereign police power. As said in Adler v. Deegan (supra):The police power of the State has never been questioned when it dealt directly with hygienic conditions of a community. Unless the intent is clear or reasonably certain it should not now be limited or whittled away by the reform known as Home Rule for cities” (p. 478).

Like the Rapid Transit Act, discussed in Admiral Realty Co. v. City of New York (206 N. Y. 110) and the Public Service Commission Law under consideration in Matter of McAneny v. Board of Estimate and Apportionment (232 N. Y. 377), which dealt with railroads in the city of New York, this act, dealing with sewage of the city of Buffalo, is a matter of public interest affecting the whole State. It may be noted that in Admiral Realty Co. v. City of New York (supra), existing subways owned by the city were to be operated for a term of years in connection with new subways to be constructed.

It is urged also that the act here in question violates the provisions of article VIII, section 10, of the Constitution of the State in that it attempts by indirection to permit the bonded indebtedness of the properties of the city of Buffalo to exceed ten per cent of the assessed valuation thereof.

Article VIII, section 10, provides as follows: “ No county or city shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation * * * and all indebtedness in excess of such limitation, except such as now may exist, shall be absolutely void.”

There is here no question as to the bonded indebtedness of the “ properties ” of the city. If, by any construction, the effect of the act would be to increase the bonded indebtedness of the city beyond the debt limit, a question might be presented requiring our consideration. The act, by section 6 thereof, specifies that the bonds and other obligations of the Authority shall not be a debt of the State or the city and makes them payable only out of funds of the Authority. Those funds the Authority must obtain, if at all, through loans, bond issues and sewer rents to be collected as hereinbefore mentioned. Bonds issued by the Sewer Authority are not protected by a lien upon the lands or properties either of the existing sewer system or upon the lands and properties to be acquired. The sewer rents provide the only means of payment.

It is true that the sewer rents are to be derived from owners of property using the new system, but it must be borne in mind that there is not involved the diversion of any existing source of revenue of the city. The sewer rents may only be collected upon completion of the new project, a project which will be a substitute for a system resulting in contamination of water supplies over a large area, including the city of Buffalo itself. The project will confer a benefit not now enjoyed upon the property to be subjected to the rentals.

The project constitutes a self-liquidating public improvement. The Authority cannot pledge the credit of the city in any way and its bonds are to be paid solely from the revenues of the Authority.” The act does not offend the provision of the Constitution referred to. (Tranter v. Allegheny County Authority, 316 Penn. St. 65; Department of Water & Power of City of Los Angeles v. Vroman, 218 Cal. 206; Fanning v. University of Minnesota, 183 Minn. 222; 6 McQuillan on The Law of Municipal Corporations, § 2388.)

It is further contended that the statute is in violation of section 6 of article 1 of the State Constitution and of the Fourteenth Amendment of the Constitution of the United States, in that it deprives the city of its property without due process of law and without just compensation.

The act provides for no transfer of title of any property of the city. As was said in Darlington v. Mayor of City of New York (31 N. Y. 164, 193): In cities, for reasons partly technical, and in part founded upon motives of convenience, the title is vested in the corporate body. It is not thereby shielded from the control of the Legislature, as the supreme law-making power of the State.”

The Legislature here has transferred control of the existing sewage system for a limited period to another agency of the government but only to be used for similar purposes, or perhaps for another purpose, strictly public in their character.”

Over property which a city or town has acquired and holds exclusively for purposes deemed strictly public, that is, which the city or town holds merely as an agency of the State government for the performance of the strictly public duties devolved upon it, the Legislature may exercise a control to the extent of requiring the city or town, without receiving compensation therefor, to transfer such property to some other agency of the government appointed to perform similar duties, and to be used for similar purposes, or perhaps for other purposes strictly public in character.” (Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509.)

The power of the State unrestrained by the Fourteenth Amendment to the Federal Constitution over the rights and property of cities is not open to question. (City of Trenton v. State of New Jersey, 262 U. S. 182; Hunter v. Pittsburgh, 207 U. S. 161.)

The act provides that the Authority is permitted to charge only on a basis of service rendered. Charges based upon services rendered by an authority do not constitute a tax, and the fact that a lien for unpaid charges is permitted against the property served does not affect the validity of the act. (Silkman v. Board of Water Commissioners, 152 N. Y. 327; New York University v. American Book Co., 197 N. Y. 294.)

Finally it is urged that the city of Buffalo is deprived of the privilege of referendum as provided by section 412 of the city charter (Local Law, No. 4, 1927; Local Laws, 1932, p. 21) o That provision has reference only to a city debt. Since here no debt of the city is or may be involved the charter provision has no application.

While the act in question does have the effect of transferring for a period of time the sewer system of the city from immediate control of its Common Council, the Legislature has left with the Council control over appointments to be made to the Sewer Authority which is to assume control. The members of the Board constituting that Authority must be residents of the city. The funds of the Authority are to be deposited with the City Treasurer as agent of that Authority and can only be paid out on warrant of the Comptroller as agent of the Authority and the Comptroller is vested with power to examine the books of the Authority. These and other provisions of the act insure against material detriment to, the city and its citizens as a result of the transfer of control of the system. Most serious is the necessity for the imposition of sewer rents to provide for payment of the cost of the improvements to be made. Those improvements are necessary because the city has created a menace which must be eliminated if the public health and welfare of the people of the State are to be protected, and the users of the system, who will be benefited thereby, must provide the cost of the improvements. Since the city cannot itself meet the requirements of the situation, the only alternative is for the State, in the exercise of its police power, to provide a method of constructing the improvements and of financing their cost. The statute in question affords an equitable and proper method of accomplishing such a result.

The judgment should be affirmed, with costs.

Crane, Ch. J., Crouch, Loughran and Finch, JJ., concur with Hubbs, J.; Lehman, J., concurs in the opinion since Adler v. Deegan (251 N. Y. 467) has settled the law of this State; O’Brien, J., concurs in the result on the authority of Adler v. Deegan (251 N. Y. 467).

Judgment affirmed.


author: Loughkan, J.

text:
    Bernard T. McGettigan, Respondent, v. The New York Central Railroad Company, Appellant. Elizabeth McGettigan, Respondent, v. The New York Central Railroad Company, Appellant. John A. Whalen, Respondent, v. The New York Central Railroad Company, Appellant. Bridget Canfield, Respondent, v. The New York Central Railroad Company, Appellant.

      (Argued May 1, 1935;
    decided May 28, 1935.)

      Kenneth 0. Mott-Smith for appellant.
    The defendant’s sole duty in the premises was to comply with the orders of the Public Service Commission. (Matter of Grade Crossings [N. Y. C. R. R. Co.}, 255 N. Y. 320; Matter of Grade Crossing Elitnination Act \Altamont], 234 App. Div. 129; Matter of International Ry. Co. v. Public Service Comm,., 226 N. Y. 474.)

      Loren E. Harter for respondents.
    The Legislature by section 53 of the Railroad Law (Cons. Laws, ch. 49) did not delegate to the Public Service Commission authority to permit the defendant to obstruct the public highway by erecting and maintaining in the center thereof its flashing highway crossing signal. (Bradley v. Degnon Contracting Co., 224 N. Y. 60; Town of Albion v. Ryan, 201 App. Div. 717; Town of Mt. Pleasant v. City of New York, 199 App. Div. 315; Town of Waterford v. Brockett Lumber Co., 227 App. Div. 422; People ex rel. N. Y. R. Co. v. Public, Service Comm., 223 N. Y. 373; People ex rel. Municipal Gas Co. v. Public Service Comm., 224 N. Y. 156; McAneny v. N. Y. C. R. R. Co., 238 N. Y. 122; People ex rel. P. S. I. Transportation Co. v. Publis Service Comm.,
      262 N. Y. 39; Lantry v. Mede, 127 App. Div. 557; 194 N. Y. 544; State Board of Pharmacy v. Gasau, 195 N. Y. 197; Daly v. Haight, 170 App. Div. 469; 224 N. Y. 726; Matter of N. Y..& H. B. B. Co. v. Kip, 46 N. Y. 546; Psota v. L. I. B. B. Co., 246 N. Y. 388; Tinker v. N. Y., O. & W. B. B. Co., 157 N. Y. 312; Garvey v. L. I. B. B. Co., 159 N. Y. 323; Delaware, L. & W. B. B. Co. v. City of Buffalo, 158 N. Y. 266; United States v. Fischer, 2 Cranch, 358; People ex rel. City of New York v. N. Y. C. B. B. Co., 217 N. Y. 310.) The defendant was not relieved from the duty of properly lighting or otherwise illuminating the obstruction so that travelers lawfully using the highway might be warned of its existence. The question was one of fact for the jury and the jury has found the defendant negligent. (O’ Neill v. City of Port Jervis, 253 N. Y. 423; Bradley v. Degnon Contracting Co., 224 N. Y. 60; City of Mt. Vernon v. N. Y., N. H & H. B. B. Co., 232 N. Y. 309; Callanan v. Gilman, 107 N. Y. 360; Bailey v. Bell Telephone Co., 147 App. Div. 224; Gale v. N. Y. C. & H. B. B. B. Co., 76 N. Y. 594; McKinney v. N. Y. C. & H. B. B. B. Co., 66 App. Div. 207; 174 N. Y. 516; Delaware, L. & W. B. B. Co. v. City of Buffalo, 158 N. Y. 266; Stern v. International By. Co., 220 N. Y. 284; West v. City of New York, 265 N. Y. 139; Klepper v. Seymour House Corp., 246 N. Y. 85; Vande-waier v. N. Y. & N. E. B. B. Co., 135 N. Y. 583; Spitzer v. N. Y. C. B. B. Co., 211 App. Div. 332; Harriman v. N. Y. C. & St. L. B. B. Co., 253 N. Y. 398; Taylor v. City of Albany, 239 App. Div. 217; 264 N. Y. 539; Weis v. L. I. B. B. Co., 235 App. Div. 253.)
   Loughkan, J.

These are actions for negligence. Each of the plaintiffs has a judgment for injuries suffered when an automobile, in which they were riding through rain and darkness, struck the concrete base of a signal apparatus placed by defendant in the center of the highway adjacent to its railroad tracks at a grade crossing in the village of Pulaski. The verdicts against defendant must be taken to establish that, although plaintiffs exercised sufficient care to that end, they did not see the obstruction in time to avoid the impact. A signal supervisor of defendant had previously reported to his superiors that other vehicles had collided with the same object in the night time.

The principal defense is that the particular position, structure and equipment of the object had been authorized by law and that the authorization had been fully executed. The facts upon which this defense is predicated are admitted. Prior to the accident, the Public Service Commission, after an investigation of the causes of grade crossing collisions, had issued a general order prescribing, Rules and regulations governing installation and maintenance of a Uniform Type of Automatic Warning Signal to be used at highway grade crossings in the State of New York.” Dimensions, contours and colors of the several parts of this signal, as well as its warning lights, were specified in the order, which made, among others, the following provisions: “ The signals may be installed either in the center of the highway or to the right thereof as one approaches the railroad. One signal must be installed on each side of the railroad. In cases where the physical characteristics require that the signal shall be located on the left side, such location may be used after special permission therefor has been secured from the Commission.”

Pursuant to these requirements, the Public Service Commission thereafter made an order respecting the location of the signal apparatus in question in the following form: The New York Central Railroad Company [defendant] having submitted a plan showing the proposed installation in the center of the highway of automatic horizontal flashing highway crossing signals at the crossing of the railroad and Safina street, in Pulaski, N. Y., and said plan having been examined and found satisfactory, it is Ordered: That the plan filed by The New York Central Railroad Company be and hereby is approved and that permission is hereby granted to install the signals in the center of the highway.”

The competency of the Public Service Commission to make these orders is not questioned (Public Service Commission Law; now Public Service Law [Cons. Laws, ch. 48] passim.) That it was defendant’s duty to conform to the general order for installation of a signal (Railroad Law, § 53 [Cons. Laws, ch. 49]), and that defendant in fact installed a signal conformably to a plan approved by the Commission are undisputed. The court here ruled, however, that if the man of ordinary prudence would nevertheless have maintained the signal in a condition safely visible to a careful, observing user of the highway no matter what the state of the weather, failure of defendant to do so was negligence. The evidence supports the verdicts for plaintiffs on the issue thus framed. The Appellate Division has affirmed the ruling of the trial court. On defendant’s application, we have reviewed its contention that it owed to plaintiffs no duty other than that defined by the orders of the Public Service Commission. In our opinion, proper construction of these directions establishes that the cases were rightly left to the jury.

The analogies and distinctions involved are sharply suggested by Great Central Ry. Co. v. Hewlett ([1916] 2 A. C. 511). The railway company erected gates and posts at the entrance to one of their stations. These were found to be a nuisance and an obstruction of the highway. The company then obtained an act of Parliament which authorized the maintenance of the existing gates and posts. The duty to light the locality was upon public officials. While the street was darkened as a war measure, the plaintiff drove his taxicab into one of the posts and sustained damages for which he sued. A judgment in his favor was affirmed by the Court of Appeal. It was held by that court that, since nothing in the statute absolved the defendants from the duty to act with reasonable care in the circumstances from time to time, the jury’s finding of negligence was not without warrant (32 T. L. 373.) The decision of the Court of Appeal was overruled in the House of Lords on the ground that the accident arose, not from any overt act of the company, but from the legalized existence of the gate post and the supervening risk resulting from diminution of light necessitated by the exigencies of war. In respect of that decision it is to be noticed that it is a case, not of statutory license to put an obstruction in a highway, but of express and specific legislative sanction of the continuance of something as it stood in the street. The case was found not to differ in principle from that of a road dedicated subject to an obstruction already there (Opinion of Lord Wkenbury). Nothing so decided, it was said, was intended to cast doubt on the settled rule, relied on by the Court of Appeal, that statutory powers must be exercised with reasonable judgment and precaution to prevent injury to others. The present cases, we think, are controlled by that principle.

The problem, it may be observed again, is to settle by construction the limits of the orders of the Public Service Commission. The doctrine that what the law specially sanctions cannot itself be wrongful has been narrowly applied in this court: “ We need not discuss the cases, or consider how broadly the doctrine should be permitted to operate, since one condition or limitation has been firmly grafted upon it, which raises the final and ultimate question in the case before us. That limitation is that the authority which will thus shelter an actual nuisance must be express, or a clear and unquestionable implication from powers conferred, should be certain and unambiguous, and such as to show that the legislature must have contemplated the doing of the very act in question.” (Hill v. Mayor of City of New York, 139 N. Y. 495, 501, 502.) (See 1 Street on The Foundations of Legal Liability, pp. 41-45.)

Authority to defendant to place the signal apparatus in the center of the highway was conferred in general terms of mere permission. There was no imperative command that the structure if so located was to be maintained with the specified equipment and nothing more. Indeed there is no negative word in either order of the Public Service Commission. Defendant is not here held liable merely because it made an unwise choice between the alternatives afforded by the orders. As we read them, a larger discretion was thereby left to defendant and the presumption is that this discretion was intended to be exercised in conformity with private rights. (See Dyer v. Erie Ry. Co., 71 N. Y. 228, 230; Thompson v. N. Y. C. & H. R. R. R. Co., 110 N. Y. 636; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 28, 29; Vandewater v. New York & N. E. R. R. Co., 135 N. Y. 583; Salmond on the Law of Torts [8th ed.], pp. 46-50; 1 Bevenon Negligence in Law [4th ed.], pp. 372-375.) We can find no room for the implication that defendant was to be immune although (as the jury could have found) it kept a dangerous thing in the highway-after knowledge of the danger.

In each case, the judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Finch, JJ., concur.

Judgments affirmed.