tt\tt ■** f u 
 
 AT SPECIAL TERM. 
 
 JOHN JACOB ASTOR 
 
 against 
 
 THE MAYOR, ALDERMEN AND COMMONALTY 
 OF THE CITY OF NEW YORK and AN- 
 DREW H. GREEN. Comptroller. 
 
 FREEDMAN, J. 
 
 NEW YORK: 
 Evening Post Steam Presses, 41 Nassau St., cor. Liberty. 
 
 i~S74. 
 
 r 
 
 j 
 
Avery Architectural and Fine Arts Library 
 Gift of Seymour B. Durst Old York Library 
 
 3 2.2. 
 
f uperior Court 
 
 OF THE CITY OF NEW YORK. 
 
 . ^ 
 
 John Jacob Astor, j 
 
 Plaintiff, I 
 against f 
 
 The Mayor, Aldeemen and) 
 Commonalty of the City of New! 
 York, and Andrew H. Green,! 
 Comptroller of said city. 1 
 
 Defendants. I 
 
 Free dm an, J. 
 
 This action is brought by the plaintiff as the owner of 
 a number of lots, situate in the city of Xew York, to have 
 certain assessments, alleged to have been illegally imposed 
 upon said lots, for a street improvement, removed as a 
 cloud upon his title. The relief demanded by the com- 
 plaint is, that the record of said assessments in the office 
 of the comptroller, so far as it affects the said lots of the 
 plaintiff, be canceled and annulled; that the entries 
 made in said record, so far as they affect the said lots of 
 the plaintiff, be expunged and altogether held for naught, 
 and removed as a cloud upon the title of the plaintiff; 
 and that the said assessments made upon plaintiff's said 
 lots, be adjudged to be void and be set aside ; and that the 
 defendants, their officers, agents and servants, be per- 
 petually restrained from collecting such assessments, and 
 from taking any proceedings therefor, by sale or other- 
 
NS? 
 
 2 
 
 wise ; and that the plaintiff have such further or other 
 relief, or both, in the premises as to the court may seem 
 meet, with the costs of this action. 
 
 The case is a difficult and complicated one, and involves 
 large public and private interests. Some of the questions 
 involved are novel and of the highest importance to the 
 corporation of the city of New York, and to all who own 
 and possess real property within the -corporate limits. I 
 have therefore given to the case the most careful con- 
 sideration. 
 
 On the 3d of April, 1807, an act of the Legislature was 
 passed, fixing the plan, the lines, and the extent of the 
 streets in the city of New York, and providing for the 
 making and filing of a map of the same. 
 
 On the 9th of April, 1813, an act was passed (chap. 86) 
 entitled " An Act to reduce several laws, relating particu- 
 larly to the city of New York, into one act," and by it 
 general power and authority was conferred upon the 
 mayor, aldermen and commonalty of said city, to lay out, 
 form, open, extend, enlarge, straighten, alter or otherwise 
 improve streets. It also prescribed the manner in which 
 these powers should be exercised, and the steps necessary 
 to be taken, so as to render proceedings taken unc'er said 
 act effectual and binding upon the persons and prop- 
 erty to be affected by them. 
 
 On the 17th of May, 1869, the special act was passed 
 (chapter 890), under which this case has arisen. It is 
 entitled " An Act to alter the map or plan of the city of 
 New York, and to carry the alterations into effect." The 
 first section of this act provided for the widening and 
 straightening of Broadway, from Thirty-fourth to Fifty- 
 ninth street, and required the Commissioners of the 
 Central Park to lay out that part of Broadway, and to 
 locate the easterly and westerly lines thereof, and to file 
 duplicate certificates of maps in the offices of the street 
 commissioner and the register of the city of New York, 
 and such tiling was declared to be conclusive, as io the 
 extent and boundaries of such improvement. All laws in 
 force relative to street Openings, &c, were declared to be 
 applicable to the proceedings to betaken, except as modi- 
 fied by the said act. 
 
3 
 
 The second section of said act provided that, upon the 
 tiling of the said maps and certificates, the counsel to the 
 corporation should institute proceedings to acquire for 
 public use and in behalf of the corporation, the title to 
 the lands required for the purposes of the improvement, 
 and that for this purpose he should make application to the 
 Supreme Court, at any Special Term in the first district, 
 for the appointment of three commissioners of estimate 
 and assessment. 
 
 Other regulations were made, as by reference to said 
 act will more fully and at large appear. 
 
 The Commissioners of Central Park made and filed the 
 certificates and maps as required by said act, and the boun- 
 daries of Broadway, as altered and widened, became con- 
 clusively fixed and defined. 
 
 The counsel to the corporation, for and on behalf of the 
 corporation, made application to the Supreme Court for 
 the appointment of three commissioners of estimate and 
 assessment, as required by the act, and three commission- 
 ers were appointed, and such proceedings were afterwards 
 had that the said commissioners made their awards for 
 damage and their assessments for benefit, and their report 
 was confirmed by the Supreme Court on the 28th of Dec, 
 1870. 
 
 On the 27th February, 1871, another act was passed in 
 relation to the widening of Broadway, and to regulate the 
 practice in that proceeding (chap. 57 of Laws of 1871, p. 
 92). By the first section of this act it was provided that 
 an appeal might be taken by the mayor, aldermen and 
 commonalty of the city of New York from the order of 
 the confirmation of the report theretofore entered at any 
 time within four months from the date of such order ; 
 and the manner of hearing the said appeal was specially 
 prescribed, and the practice therein regulated. 
 
 The 1th section of this act provided that within four 
 months the said mayor, &c, of New York might also 
 move to vacate the said order of confirmation, on the 
 ground of error, mistake, irregularity or illegality, or that 
 the awards or assessments were unfair, unjust, inequitable 
 or oppressive ; and the practice on such motion was regu- 
 lated by special provisions. In case of the vacation of the 
 
4 
 
 order, the matter was to be referred back to new commis- 
 sioners, and in sncli case a majority of the new commis- 
 sioners were to be others than the old commissioners, 
 and their report was to come up on twenty days' notice- 
 
 The motion to vacate was made and granted on grounds 
 specified in the last named act, and on the 3d ol April, 
 1871, new commissioners were appointed for the purpose 
 of '•amending and correcting the report made to this 
 "court on December 28, 1870, and to make a new assess- 
 "ment in whole, both as to awards for damage and assess- 
 
 merits for benefit, as they might deem proper." An 
 appeal was taken from this decision to the General Term 
 of the Supreme Court, and the order of the Special Term 
 was affirmed (61 Barb., Sup. Ct. K., 483). A further ap- 
 peal was taken to the Court of Appeals, where the deci- 
 sion bebw was affirmed (49 X. Y., 150). 
 
 The new commissioners appointed by the order of April 
 3d, 1871, consisted of Alexander T. Stewart, John Q. 
 Jones and James S. Hennessy. The last named had also 
 been a member of the first board. These commissioners 
 took the oath of office and entered upon the discharge of 
 their duties. 
 
 Xo question is raised by the plaintiff as to the regu- 
 larity of the proceedings up to this point. 
 
 After several meetings had taken place, Alexander T. 
 Stewart, on the 29th of May, 1871, resigned and ceased 
 to act as one of the commissioners. On or about June 1, 
 1871,- on motion of the counsel to the corporation, made 
 without notice by publication or otherwise, an order was 
 made in the Supreme Court appointing William E. Dodge 
 commissioner of estimate and assessment. Mr. Dodge, 
 being about to sail for Europe, declined to act, and on or 
 about the 10th of June, 1871, an order was made, on a 
 further motion of the corporation counsel, made without 
 notice by publication or otherwise, revoking the order of 
 June 1st, and appointing William Wood commissioner in 
 place of Alexander T. Stewart. Both these orders were 
 filed in the clerk's office, on the 12th of June, 1871, and 
 on l he same day Mr. Wood took the oath of office and 
 entered upon the discharge of his duties. Xo further 
 change occurred subsequently in the composition of the 
 commission. 
 
5 
 
 The commissioners thus constituting the commission 
 held various meetings, and, in the course of time, reported 
 the result of their labors to the Supreme Court, in the 
 shape of two reports. One of these was signed by a 
 majority, Messrs. Jones and "Wood, and the other was 
 made by Mr. Hennessy. The Supreme Court referred the 
 majority report back to the commissioners who had made 
 it, with instructions to correct the same in several parti- 
 culars. These corrections were made in the shape of iwo 
 amended or supplemental reports, and thereupon the court 
 confirmed the majority report as corrected. The order of 
 confirmation was, on appeal, affirmed by the General 
 Term (03 Barb., 591). A further appeal was taken to 
 the Court of Appeals, but dismissed by that court, for the 
 reason that, under the provisions of the Act of 1813, the 
 report on confirmation by the Supreme Court became 
 final and conclusive upon the Mayor, Aldermen and Com- 
 monalty as well as upon the parties interested, and that 
 consequently the order of affirmance made by the General 
 Term was not appealable. 
 
 The plaintiff' has now filed his bill in equity for the re- 
 moval of the assessments as a cloud upon his title, and 
 assigned various reasons why his prayer for relief should 
 be granted. He contends, in the first place, that the 
 assessments were not laid as required by law to be laid. 
 
 1. Because the appointment of William Wood was made 
 without notice, and therefore was a nullity, which fact 
 renders the report made by him, jointly with Jones, wholly 
 null and void. And — 
 
 2. Because no notice, by publication or otherwise, of 
 the presentation of either of the amended or supplemental 
 reports was given, as required by statute. 
 
 I propose to consider these objections at once, and 
 without reference to the constitutional question herein- 
 after referred to. 
 
 The Act of May 17, 1800 (chap. 800), authorizing the 
 widening and straightening of Broadway, provides that 
 " all acts now in force relative to opening, &c, streets and 
 " avenues in the said city, shall apply to that part of 
 
6 
 
 ei Broadway as so laid out, and to all proceedings under 
 " this act, so far as the same are applicable, except as 
 hereinbefore or hereinafter provided" (§1, p. 2,237). 
 And the Act of February 27, 1871 (chap. 57), provides 
 that proceedings under it " shall be regulated by and ac- 
 " cording to the laws now existing relating to the open- 
 ing of streets and avenues in the city of New York" 
 
 (I 4, P- 9*)- 
 
 The only act in force in 1869 and 1871 relative to the 
 appointment of commissioners, so far as the questions now 
 under examination are concerned, was the Act of April 20, 
 1839 (chap. 200 of Laws of 1830). which had superseded 
 the provisions of the Act of 1813, upon this subject. 
 
 Section 2 of this act provides as follows : 
 
 " The Commissioners of Estimate and Assessment shall 
 be appointed as follows : The Mayor, Aldermen and Com- 
 monalty shall give notice, by advertisement to be pub- 
 lished in at least four of the public newspapers printed in 
 said city * * * for and during the space of twenty 
 days" * * * 
 
 Section 4 provides that " the commissioners shall give 
 
 notice of the time and place of making their report, by 
 
 advertisement, to be published for at least sixty days. 
 * * * 
 
 Section 9 is as follows: 
 
 "All motions (except as hereinbefore provided) * * <* 
 shall be upon giving previous notice of the time, place 
 and object of such motion, to be published for at least 
 fourteen days in four of the public newspapers." * * * 
 
 Section 12. * * * " Public notice of the time and 
 place of taxation of costs shall be given for the same time 
 and in the same manner as notices required to be given by 
 the above ninth section." * * * 
 
 Section 13. So much of the act aforesaid (t. e., the Act 
 
7 
 
 of 1813), or any other act as is inconsistent with the pro- 
 visions of this act, is hereby repealed. 
 
 No change has been made in these requirements by any 
 subsequent law, except by § 8 of the Act of April 24th, 
 1862 (chap. 483), which is as follows : 
 
 "Any notice now required or hereafter to be re- 
 quired by law to be published in any proceeding for the 
 opening, &c, of any street, &c, shall hereafter be published 
 in not more than two daily newspapers, * * * and 
 handbills shall be posted in three conspicuous places." * * 
 And by the Act of 1871 (chap. 57), which shortened the 
 notice to be given by publication of the presentation of the 
 report for confirmation to "at least twenty fays," and also 
 limited the number of the newspapers to tivo. 
 
 The application for the order of the appointment of a 
 commissioner to fill the vacancy created by the resigna- 
 tion of Mr. Stewart was a motion within the definition of 
 that term contained in section 401 of the Code, and it 
 seems, therefore, that independently of the requirements 
 of the second section of the Act of 1839, requiring a notice 
 of 20 days, a notice of at least 14 days should have been 
 given by publication in two newspapers. The theory that 
 the court, on its own motion, might have filled the va- 
 cancy, and that for that reason no notice was necessary, 
 seems inapplicable, for the simple reason that in point of 
 fact the court did not act upon its oavh motion, but upon 
 the motion of the counsel to the Corporation, as author- 
 ized by § 187 of the Act of 1813, and the order made re- 
 cites such fact. 
 
 So, as the 4th section of the Act of 1839 expressly re- 
 quires, in addition to what has been stated above, that 
 notice of the presentation of any supplemental or amended 
 report shall be given by publication for at least twenty 
 days, the omission of the commissioners to give such 
 notice would seem to constitute another irregularity. 
 
 Even if it be conceded, however, that in the respects 
 indicated, legal irregularities have been committed, it does 
 not follow that in consequence thereof the plaintiff is 
 entitled to the relief demanded. 
 
 Formerly, it is true, the rule was that in street improve- 
 
8 
 
 ment cases the provisions of law must be strictly followed, 
 and that any departure from regularity is fatal thereto. 
 
 Sharp vs. Spier, 4 Hill, 76. 
 
 Sharp vs. Johnson, 4 Hill, 96. 
 
 The doctrine laid down was. that where lands are taken 
 under a statute authority, in derogation of the common 
 law, every requisite of the statute having the semblance 
 of benefit to the owner, must be strictly complied with. 
 To the same effect are, 
 
 Striker vs. Kelly, 7 Hill, 24. 
 
 Cruger vs. Dougherty, 43 N. Y., 107. 
 
 Matter of Douglass, 46 N. Y., 42. 
 
 Newell vs. Wheeler, 48 N. Y., 486. 
 
 The People, ex reJ. Ira 0. Williams, vs. 
 Haines, 49 X. Y., 587. 
 
 Nor do I underrate the importance of notice to the 
 parties to be affected. Such notice involves more than a 
 semblance of benefit. This has been fully and firmly 
 established by a number of cases. 
 
 Sharp vs. Spier, 4 Hill, 76. 
 Sharp vs. Johnson, 4 Hill, 96. 
 Cruger vs. Hudson R. R. R. Co.. 12 N. Y., 
 190. 
 
 Matter of Douglass, 46 X. V.. 42. 
 In re Smith, 52 N. Y., 526. 
 
 But on the 7th of May, 1872, an act Avas passed by the 
 Legislature (chap. 580 of Laws of 1872), which provides 
 as follows : 
 
 § 7. No assessment heretofore made or imposed, or 
 which shall hereafter be made or imposed, for any local 
 improvement or other public work in the said city, already 
 completed, or now being made or performed, shall here- 
 after be vacated or set aside, for or by reason of any omis- 
 sion to advertise, or irregularity in advertising, any ordi- 
 nance, resolution, notice or oilier proceeding relative to or 
 authorizing the improvement or work for which such as- 
 BeBsmenl shall have been made or imposed, or for propo- 
 sals to do the work, or for or by reason of the omission of 
 
9 
 
 any officer to perform any duty imposed upon him, or for 
 or by reason of any defect in the authority of any depart- 
 ment or officer upon whose action the assessment shall in 
 any manner or to any extent depend ; or for or by reason 
 of any omission to comply Avith or carry out any detail of 
 any law or ordinance ; or for or by reason of any irregu- 
 larity or technicality, except only in cases in which fraud 
 shall be shown, and in cases of assessment lor repaying 
 any street or public place, upon property for which an as- 
 sessment has once been paid for paving the same street or 
 public place; and all property in said city benefited by 
 any improvement or other public work already completed 
 or now being made or performed, except as aforesaid, shall 
 be liable to assessment for such improvement or work ; 
 and all assessments for any such improvement or other 
 public work shall be valid and binding, notwithstanding 
 any such omission, irregularity, defect in authority or 
 techicality. 
 
 The effect of this statute was considered by the Court 
 of Appeals in the case of Win. C. Lennon et ah vs. The 
 Mayor, &c, of X. Y. (not yet reported), and it was there 
 held that, by the passage of the act, it was intended to 
 abrogate, as to the class of assessments therein referred 
 to, not only the summary remedy afforded by chapter 338 
 of the Laws of 1858, but also the remedy by bill in equity. 
 " The prohibition," says Kapallo, J., in delivering the 
 opinion of the court, " is general and not confined to any 
 particrlar form of proceeding, and the saving clause at the 
 end of the section indicates that the Legislature intended 
 it to apply to suits as well as to special proceedings. That 
 saving clause declares that nothing in the section con- 
 tained shall affect any suit or proceeding to set aside an 
 assessment commenced before the first day of January, 
 1872. This clearly implies that the act is intended to 
 affect suits commenced after that date." It was also held 
 that it was competent for the Legislature to deprive the 
 courts of the power to declare assessments null and void 
 for irregularity, and to restrain their collection, and to de- 
 prive parties of the benefit of this form of remed}^. 
 
 There is nothing, therefore, in the objections that have 
 been so far considered. 
 2 
 
10 
 
 The plaintiff also contends that the report of the com- 
 missioners, and its confirmation by the Supreme Court, 
 were in violation of section 7 of the first article of the 
 Constitution of 1846, which provides, that when private 
 property shall be taken for any public use, the compensa- 
 tion to be made therefor, when such compensation is not 
 made by the State, shall be ascertained by a jury, or by 
 not less than three commissioners appointed by a court of 
 record, as shall be prescribed by law. 
 
 This point presents a grave, close and interesting ques- 
 tion, which, on account of its importance, I shall discuss 
 somewhat at length. 
 
 The widening and straightening of Broadway involved 
 the taking of land for public use, the ascertainment of 
 the compensation to be made for the land so taken, and 
 the making of awards therefor ; and the assessments levied 
 upon plaintiff's lots were based upon the awards made by 
 the commissioners and the expenses of their proceedings, 
 and all the assessments made by said commissioners were 
 for no other amounts than for compensation for lands 
 and buildings so taken and the expenses of the proceed- 
 ings. 
 
 The right to take private property for public purposes 
 does not depend upon any express provision in the charter 
 of government, but is an inherent attribute of sovereignty 
 existing in every independent State. Its existence with 
 us has never depended upon our written constitutions, 
 though we turn to them whenever we are in search of 
 limitations upon the exercise of the power. 
 
 As shown by Mr. Justice Ruggles in The People v. 
 The Mayor, &c, of Brooklyn, 4 N. Y. (4 Comst.). 411). 
 private property may be constitutionally taken for public 
 use in two modes: that is to say, by taxation and by right 
 of eminent domain. These are rights which the people 
 collectively retain over the property of individuals. 
 
 The right of taxation and the right of eminent domain 
 rest substantially on the same foundation. Compensa- 
 tion is made when private property is taken in either way. 
 Money is property. Taxation takes it for public use, 
 and the tax-payer receives, or is supposed to receive his 
 just compensation in the protection which government 
 
11 
 
 affords to his life, liberty and property, and in the in- 
 crease of the value of his possessions by the use to which 
 the government applies the money raised by the tax. 
 Taxation exacts money or services from individuals as 
 and for their respective shares of contribution to any 
 public burthen. 
 
 Private property taken for public use by right of 
 eminent domain, is taken not as the owner's share of 
 contribution to a public burthen, but as so much beyond 
 his share. 
 
 Special compensation is therefore to be made in the 
 latter case, because the government is a debtor for the 
 property so taken ; but not in the former, because the 
 payment of taxes is a duty and creates no obligation to 
 repay, otherwise than in the proper application of the 
 tax. 
 
 Taxation operates upon a community, or upon a class 
 of persons in a community, and by some rule of apportion- 
 ment. 
 
 The exercise of the right of eminent domain operates 
 upon an individual, and without reference to the amount 
 oi- value exacted from any other individual or class of in- 
 dividuals. 
 
 Money cannot be exacted by the government by right 
 of eminent domain, excepting, perhaps, for the direct use 
 of the State at large, and when the State at large is to 
 make the compensation, for the exigencies of a State go- 
 vernment can seldom require the taking of money by 
 virtue of this power even in time of war, and never in 
 time of peace. The framers of the constitution could not 
 therefore have intended to delegate to municipal corpora- 
 tions the right of taking money under this power, because 
 it is entirely unnecessary. 
 
 The right to determine the time, occasion and extent 
 of the exercise of either of these two powers is vested ex- 
 clusively in the legislature, and is unlimited except so far 
 as it is restrained by some constitutional provision. It is a 
 right which maybe abused, but as has been remarked by 
 chief Justice Marshall in the case of The Providence 
 Bank v. Billings, 4 Peters, 514, the interest, wisdom and 
 justice of the representative body, and its relations with its 
 
12 
 
 constituents, furnish the only security against unjust and 
 excessive taxation, as well as against unwise legislation. 
 
 The amendments to the Constitution of the United 
 States; adopted by Congress during its first session, and 
 afterwards sanctioned by the requisite number of States, 
 to the effect that no person shall be deprived of his proper- 
 ty without due process of law; that private property shall 
 not be taken for public use without just compensation ; 
 and that in suits at common law, where the value in con- 
 troversy shall exceed twenty dollars, the right of trial by 
 jury shall be preserved — are. as has been repeatedly held, 
 not restrictions upon the legislative power of the several 
 States, but they wer^ intended, as clearly appears from the 
 preamble prefixed to them, to be restrictive upon the 
 government of the United States and its officers. 
 
 So it has been held in quite a number of cases, that the 
 provisions contained in the Constitution of the State of 
 New York — that no member of the State shall be deprived 
 of any of the rights or privileges secured to any citizen 
 thereof, unless by the law of the land or the judgment of 
 his peers : and that no person shall be deprived of proper- 
 ty without due process of law — are not limitations upon 
 the power of taxation vested in the Legislature; and that 
 the imposition of a tax, or of an assessment as a tax, does 
 not deprive the citizen of any rights or property within 
 the true intent and meaning of these provisions. The 
 taxing power of the Legislature for public purposes is, 
 therefore, unlimited, except as specifically restrained in 
 the Constitution. These restraints are to be found in £ § 
 12, \o and 14 of Article VII. They prescribe the form in 
 which every statute which imposes, continues or revives a 
 tax, shall be clothed, and the manner in which it is to be 
 put upon its final passage. Provision is also made for the 
 irrepeal ability of certain tax laws passed ho secure certain 
 debts of the State. These restraints do not in anyway 
 affect the questions arising from the imposition of taxes, 
 which are to be considered in this case. For the purposes 
 of this case, therefore, not only the power of taxation, but 
 also the power to apportion taxes, is wholly unlimited, 
 and such apportionment is to be regulated wholly by legisla- 
 tive, and not by judicial discretion. From t his it follows 
 
13 
 
 that taxation may be general or local ; that the assess- 
 ment of lands benefited by a 1 cal improvement not in- 
 volving the taking of land, is an exercise of the power of 
 taxation, and not of the power of eminent domain ; and 
 that the question whether lands so assessed are benefited by 
 the improvement, is one exclusively for the Legislature. 
 
 People v. The Mayor, &c, of Brooklyn. 4 
 Comst., 419. 
 
 Litchfield v. Ve non, 41 X. Y., 123. 
 
 In the matter of Louis Van Antwerp to vacate an as- 
 sessment in the city of Brooklyn (not yet reported), says 
 Buggies, J., in the first named case : There never was any 
 just foundation for saying that local taxation must neces- 
 sarily be limited by or co-extensive with any previously 
 established district. It is wrong that a few should be 
 taxed for the benefit of the whole ; and it is equally wrong- 
 that the whole should be taxed for the ben fit of a few. 
 No one town ought to be taxed exclusively for the pay- 
 ment of county expenses; and no county ought to be 
 taxed for the expenses incurred for the benefit of a single 
 town. The same principle of justice requires that where 
 taxation for any local object benefits only a portion of a 
 city or town, that portion only should bear the burthen. 
 There being no constitutional prohibition, the Legislature 
 may create a district for that special purpose, or they may 
 tax a class of lands or persons benefited, to be designated 
 by the public agents appointed for that purpose, without 
 reference to town, county or district lines. General taxa- 
 tion for such local objects is manifestly unjust. It 
 burthens those who are not benefited, and benefits those 
 who are not burthened. This injustice has led to the 
 substitution of street assessments in place of general 
 taxation ; and it seems impossible to deny that in the 
 theory of their apportionment they are far more equitable 
 than general taxation for the purpose they are designed 
 for. 
 
 He then shows that in the colony and State of N ew 
 York, the system of taxation for local purposes by assess- 
 ing the burthen according to the benefit, has been in 
 force for more than one hundred and fifty years. It was 
 
14 
 
 applied to highways in the county of Ulster in 1691 
 (Bradf. Laws, 45). The power was given to the corpora- 
 tion of New York in the same year (Id. 9). This statute 
 remained in force in 1773, when Van Schaack's edition of 
 the statutes was published, and no evidence of its repeal 
 is found until 1787, when it seems to have been revised 
 and its provisions re-enacted under the State constitution 
 (Van Schaack's L., 8, 9 ; 2 Jones & Var, 152; 1 Greenl., 
 443). The colonial statute was doubtless in force w r hen 
 the State constitution was adopted. It is not unworthy 
 of remark, that in April, 1691, a bill of rights was passed 
 for the security and protection of the people of the province. 
 The statute authorizing the assessment first mentioned was 
 passed afterwards during the same year. In January 
 1787, an act was passed declaring the rights of the citizens 
 of the State, and prohibiting, among other things, that any 
 person should be deprived of his property, except by due 
 process of law. The statute of 1787, authorizing street 
 assessments in the city of New York, was passed by the 
 same Legislature, and sanctioned by the same counsel of 
 revision which had assented to the bill of rights. Street 
 assessments upon the same principle were authorized in 
 the city of New York in 1793 (3 Greenl., 58), and in 1795 
 (id., 244. 245), and in 1796 (id., 333, 334), and in 1801 (2 
 K. & R., 130), and in 1813 (2 R. L., 407). The corpora- 
 tion of New York have had and exercised authority to 
 make street assessments from the infancy of that city. 
 Similar powers have been conferred on nearly every city, 
 and on many of the villages in this State. It has also been 
 applied to highways, to turnpike roads and to draining of 
 marshes. This system of taxation was in force at the time 
 of the making and adoption of our first, second and third 
 constitutions, and has stood in our statute books along 
 with the Constitutions from 1777 until now, without pro- 
 hibition or restraint. Mr. Justice Ruggles also adverts 
 at length to the attempts that were made in the conven- 
 tion of 1846 to abolish this mode of taxation, which, 
 though unsuccessful, nevertheless resulted in the adop- 
 tion and the incorporation into the present Constitution 
 of a section which provides that " it shall be the duty of 
 the Legislature to provide for the organization of cities 
 
15 
 
 and incorporated villages, and to restrict their powers of 
 taxation, assessment, borrowing money, contracting debts 
 and loaning their credit, so as to prevent abuses in 
 assessments, and in contracting debt b) T such municipal 
 corporations." (Art. VIII., § 0.) 
 
 Instead of abolishing the system of assessments, this 
 section of the Constitution refers it to the Legislature for 
 the correction of its abuses, and although the Legislatures 
 that have met of late years may not have seen fit to exer- 
 cise the duty thus imposed as effectually and as often as 
 circumstances required, but, on the contrary, by repeatedly 
 passing enactments fur the validation of assessments that 
 were null and void for unlawful acts or omissions on the 
 part of the official charged with the duty of making them, 
 pursuant to the requirements of written law, seem to have 
 evinced a constant readiness and willingness to pardon, 
 by special legislation, the most migrant violation of clearly 
 prescribed official duty, and by such course, have invited, 
 rather than discouraged, official recklessness and disregard 
 of positive law. Courts have no right to interfere, as long 
 as no constitutional provision is violated thereby. "It 
 cannot be denied/' says Chief-Justice Church in the case 
 of Lewis Van Antwerp. Jr. (not yet reported), "that ex- 
 perience has developed alarming abuses in the exercise of 
 this power (?'. e., of assessment), and it is not improbable 
 that the safety of the public may require that some con- 
 stitutional restrictions shall be interposed ; but until this 
 is done, the judiciary cannot control its exercise." 
 
 If, therefore, the assessments now under consideration 
 had been laid simply in the exercise of the power of taxa- 
 tion, the complaint of the plaintiff would not be well 
 founded. 
 
 But the widening and straightening of Broadway, also 
 involved the taking of land, which could only be taken 
 under the power of eminent domain. 
 
 The existence of the power of eminent domain, as has 
 hereinbefore been shown, has never depended upon our 
 written constitutions, although by those of 1821 and 1846 
 its exercise is declared to be limited upon the condition of 
 making just compensation. (Const, of 1821, Art. VII, § 
 
16 
 
 7; Const, of 1846, § 6.) The Constitution of 1777 con- 
 tained no similar provision ; yet no one, from the founda- 
 tion of the government, ever doubted, from the silence of 
 the Constitution on the subject, the existence of the right, 
 or denied the existence of the duty founded on natural 
 equity, of making compensation. But the mode of ascer- 
 taining the compensation remained wholly unrestricted 
 until the adoption of the Constitution of 184(3. Up to 
 that time it was left to the discretion of the^egislature to 
 regulate such mode according to the exigencies of parti- 
 cular cases, and in such manner as seemed best for each 
 locality. As the mode of ascertaining damages by com- 
 missioners had at all times been resorted to in this State, 
 the Legislature almost invariably adopted that mode in 
 matters relating to street improvements in the city of 
 New York, and it was retained in the Act of 1813, which 
 confers general authority upon the Mayor, Aldermen and 
 Commonalty to open and improve streets and avenues, 
 and which was intended to form, and together with the 
 amendments that have since been made to it, does form a 
 complete system of law upon that subject 
 
 The said act provides that whenever and as often as the 
 Mayor, Aldermen and Commonalty shall be desirous to 
 open, &c, the whole or any particular section or part 
 of any of the streets or avenues therein referred to, it 
 shall be lawful for them to cause the same to be done ; 
 that the lands, tenements and hereditaments required for 
 the purpose of opening, &c, the same, may be taken for 
 such purpose, and that compensation and recompense be 
 made therefor, in the manner pointed out by subsequent 
 parts of the act (§ 177). The next section declares 
 that whenever any lands are so required to be taken, the 
 Mayor, &c., of New York, may apply to the Supreme 
 Court for the appointment of commissioners, and the said 
 court may thereupon nominate and appoint three discreet 
 and disinterested persons, being citizens of the United 
 States, commissioners of estimate and assessment, for the 
 purpose of performing the duties, &c, in that behalf pre- 
 scribed. These commissioners, after taking an oath faith- 
 fully to perform their duty, arc to view the premises, cause 
 all necessary maps and surveys to be made, and make their 
 
17 
 
 estimate and assessment. This is to be an estimate of loss 
 and damage to be awarded to the owners of the land re- 
 quired to be taken for the street or avenue, and an esti- 
 mate and assessment of the benefit and advantage which 
 the opening of such street or avenue will be to certain 
 lands not required to be taken, but contiguous or adjacent 
 thereto (§ 178). The act also prescribes the manner in 
 which the commissioners are to proceed, the notice of the 
 different steps to be taken by the commissioners to which 
 persons whose rights are to be affected, are from time to 
 time entitled during the progress of the proceeding, the 
 mode in which such notice is to be given, the form of, and 
 the matters to be embraced in the final report to be made by 
 the commissioners to the Supreme Court, the time and 
 manner of its presentation, and the notice to be given to 
 the public of such presentation. Section 188 furiher pro- 
 vides, that in all and every case it shall be competent and 
 lawful for any tiro of such commissioners to proceed to, 
 and execute and perform the trusts and duties of their 
 said appointment, and their acts shall be as valid and 
 elfectual as the acts of all the commissioners if they had 
 acted, would have been ; and also, that in all cases the 
 acts, decisions and proceedings of the major part of such 
 of the commissioners as shall be acting, shall always be as 
 binding, valid and effectual, as if the said commissioners 
 named and appointed for such purposes, had all concurred 
 and joined therein. And § 178 authorizes the court to 
 confirm a report signed by any two of the commissioners. 
 
 So the 4th section of chap. 483 of the Laws of 1802, 
 authorizes any two of the commissioners to sign the copies 
 of the report that are by law required to be filed, and to 
 present their report to the court. 
 
 But by the Constitution of 1846, it was not only ex- 
 pressly provided that private property shall not be taken 
 for public use without just compensation (Art. I, § (5), but 
 also, that whenever private property is thus taken, and the 
 compensation is not made directly by the State, such com- 
 pensation shall be ascertained by a jury, or by not less than 
 three commissioners appointed by a court of record, as 
 sh til bj L n\33orib3l by lav (Art. 1, § 7). The last named 
 section then goes on to provide, in addition, that private 
 3 
 
18 
 
 roads may be opened in the manner to be prescribed by 
 law; but in every case the necessity of the road, and the 
 amount of all damage to be sustained by the opening 
 thereof, shall be first determined by a jury of freeholders, 
 and such amount, together with the expenses of the pro- 
 ceeding, shall be paid by the person to be benefited. The 
 word "jury," as thus used by the Constitution, has since 
 received a judicial construction in the case of Cruger v. 
 The Hudson B. K. E. Co., 12 1ST. Y., 190, where it was 
 held that in view of the prior practice applicable to such 
 cases, such word did not necessarily import a tribunal con- 
 sisting of twelve men acting only upon a unanimous de- 
 termination, but that it was used to describe a body of 
 jurors of an indefinite number, and deciding by majorities 
 or otherwise as the Legislature in each instance might 
 direct. This was in effect a reiteration of the doctrine 
 laid down by the chancellor, in Livingston v. The Mayor, 
 &c, of New York, 8 Wend., 85, namely, that the provision 
 of the Constitution relative to the right of trial by jury, 
 relates to the trial by courts of justice of issues of fact in 
 civil and criminal proceedings ; that it has no relation to 
 cases involving the taking of land for purposes of public 
 improvement, and that although damages in the class of 
 cases last mentioned, have frequently been ascertained by 
 the oaths of twelve freeholders, that fact did not consti- 
 tute the said proceedings jury trials, within the spirit or 
 meaning of the constitutional provision which preserves 
 the right of trial by jury. 
 
 In case, however, commissioners are to be appointed, the 
 Constitution itself pivscribes and fixes their minimum 
 number. The language is "not less than three." 
 
 The first question, therefore, which arises under that 
 provision, is whether the concurrence of all three is ne- 
 cessary, or whether it is still competent for the Legisla- 
 ture to declare that the acts and the decisions of a majority 
 sli all be sufficient. 
 
 Certain it is that by a further clause contained in the 
 17 th section of the same article of the Constitution, all 
 such acts of the Legislature, and parts thereof, as were 
 repugnant to fundamental law as embodied in, and pro- 
 claimed by the Constitution, were abrogated. Such. 
 
19 
 
 indeed, would have been the effect without any express 
 provision, as " leg is pasterioras priores confrarias abro- 
 gant" 
 
 On confirming the report of Messrs. Jones and Wood, 
 Mr. Justice Gilbert, at Special Term, and upon the au- 
 thority of the Church street extension, case, 49 Barb., 
 -±55, held that such concurrence was not accessary. But 
 that case is no authority upon this point. The objection 
 raised in that case was " that one of the commissioners 
 had never conferred or consulted with the others, and had 
 not signed the report."' It does not appear anywhere that 
 such objection was based on the Constitutional provision. 
 If it was, then the case of The People v. Batchellor, 22 
 N. Y., 130, upon the strength of which it was disposed of, 
 and which had arisen solely under p. 502 of the Laws of 
 1855, was not in point at all. The fact that the case of 
 Batchellor was the only authority cited for the decision 
 that was made, would seem to indicate that the objection 
 was raised under the Revised Statutes exclusively ; nor 
 does an examination of the reasoning of the court furnish 
 any other indication. Says Leonard, P., J. : " It is also 
 objected that one of the commissioners has never con- 
 ferred or consulted with the others, and has not signed 
 the report. If the fact sustained this objection to the 
 extent stated, it would be fatal to the validity of the re- 
 port. It conclusively appears, however, that the commis- 
 sioner referred to appeared and took the oath of office ; 
 that he, with the other commissioners agreed upon future 
 meetings at a fixed day of the week, and he did meet with 
 the others on several occasions, and transacted some busi- 
 ness. He was notified in writing of several meetings. He 
 was notified orally, and made partial promise to attend par- 
 ticular meetings. He did not resign, or notify the other 
 commissioners that he would not act in the matter. The 
 board of commissioners was regularly organized, and it 
 does not appear that the two who have signed the report 
 were informed that the other member of the board objected 
 to act or confer with them (unless it was to be inferred 
 from his neglect to be present at their meetings), until his 
 final refusal to sign the report."' 
 
 The General Term of the Supreme Court on affirming 
 
20 
 
 the order of confirmation made by Mr. Justice Gilbert, 
 also relied on the Church street extension case as an au- 
 thority on the point, that a concurrence of the three com- 
 missioners is not necessary under the Constitution (63 
 Barb., 591), and the learned justice who delivered the 
 opinion of the court on that occasion, indulged in the fol- 
 lowing reasoning : "It is urged that this provision, i. e., 
 Act of 1813, §§ 188, 178, is abrogated by the Constitution 
 of 1846, Art. I., § 7. That section requires compensation 
 to be ascertained by a jury, or by not less than three com- 
 missioners. But in the case of Cruger v. The H. R. R. R. 
 Company, 12 N. Y., 190, it was held that, notwithstanding 
 this constitutional provision, the Legislature might au- 
 thorize a decision by a majority of the jury appointed in 
 such cases. And if the Legislature can authorize a ma- 
 jority of the jury to decide, why can they not authorize a 
 majority of the commissioners to do the same thing ? 
 The cases are so nearly analogous, that we are bound by 
 that decision. This, too, was the decision in the Church 
 street case (49 Barb., 458)." 
 
 That the Church street extension case does not deserve 
 this reverence as an authority on the constitutional ques- 
 tion, I have already shown, and in placing so much re- 
 liance upon the case of Cruger v. Hudson R. R. R. Co., 
 the learned judge seems to have overlooked the fact that 
 while the number of which the jury mentioned in section 
 7, of article I., of the constitution is to be composed, is 
 left to the discretion of the legislature, the minimum 
 number of commissioners is expressly limited to three. 
 
 But as it is not necessary to the decision of this case, to 
 deny in toto the power of the legislature to authorize a de- 
 cision by a majority of the three commissioners, I shall 
 refrain from a more protracted investigation, and will at 
 once proceed to examine the manner in which the major- 
 ity may constitutionally arrive at a decision. 
 
 To arrive at a proper conclusion in that respect, it will 
 be well to keep in mind that thus far the following two 
 propositions have been conclusively established, viz. : 
 
 I. So far as the provisions of the Act of 1813 authorize 
 a report to be made and presented by any two of the com- 
 
21 
 
 missioners, without conference or consultation with the 
 third commissioner, and to he confirmed by the court, 
 they have been abrogated by the constitution of 1846, as 
 to cases involving the taking land. 
 
 II. So much of the Act of 1862 (chap. 483), as author- 
 izes like proceedings by only two of the commissioners, is 
 unconstitutional and void as to cases involving the taking 
 of land. 
 
 How then must the majority arrive at a decision ? 
 
 At common law the rule was that, where several persons 
 constitute a judicial body, a tribunal appointed, by law to 
 act in matters of public concern, they must all convene 
 and act. When so convened and acting, a majority may 
 decide, notwithstanding the express dissent of the minor- 
 ity. This rule, however, was confined to officers or per- 
 sons clothed with authority to perform or discharge a 
 public duty. In cases of private arbitration and matters 
 of a private nature, it was required that the whole body 
 should be unanimous. Parrot t v. The Knickerbocker Ice 
 Co., 8 Abb. Pi\, X. S; 3 234, and cases there cited. 
 
 The revised statutes in force at the time of the adoption 
 of the constitution of 1846, provided and still provide, 
 that "Whenever any power, authority or duty is confided 
 by law to three or more persons, and whenever three or 
 more persons or officers are authorized or required by law to 
 perform any act, such act may be done, and such power, 
 authority or duty may be exercised and performed by a 
 majority of such persons or officers, upon a meeting of all 
 the persons or officers so entrusted or empowered, unless 
 special provision is otherwise made " (2 Kev. St.. 555> sec. 
 27). This provision is found under the title of "General 
 miscellaneous provisions concerning suits and proceedings 
 in civil cases." 
 
 Even if it be assumed, therefore, for the purposes of this 
 case, that Mr. Justice Gilbert was correct in holding that, 
 as section 17, of the first article of the constitution, con- 
 tinued certain parts of the common law, and of the stat- 
 utes then in force in this State, which were not repugnant 
 to the constitution ; that among others the rule of com- 
 
22 
 
 mon law above referred to. and the said 27th section of 
 the Revised Statutes were thus continued, and that for 
 these reasons the constitutional provision that the com- 
 pensation shall be made by not less than three commis- 
 sioners, should be construed in the light which the said 
 rule and the said section throw upon it ; and that when 
 so construed, there is no constitutional prohibition against 
 the adoption of the determination of the majority, it 
 would still be necessary for three commissioners to 
 meet and to consult in relation to the matters to be pre- 
 sented by their final report, in order that each may have 
 the benefit of the views of his colleagues to aid him in 
 arriving at a proper conclusion. Surely the constitution 
 made no special provision to the contrary, when it con- 
 clusively fixed the number of the commissioners; and the 
 rule as thus stated, is the only logical deduction that 
 can be made from the decision and the reasoning of 
 the case of the Board of Water Commissioners of Cohoes, 
 v. Lansing, 45 N. Y., 19. Says Rapallo, J. : "The com- 
 pensation in this case was fixed and the report made 
 by only two persons. There was no competent evidence 
 that they rendered their decision at a meeting at which 
 the three were present, but the proofs presented to the 
 court tended to establish the contrary. There is no 
 ground, therefore, upon which the proceeding can be sus- 
 tained, even if the rule that a major it y can decide is appli- 
 cable to a case of this description, when less than three 
 concur in a decision." 
 
 Mr. Justice Gilbert assumed that the three commis- 
 sioners had met and conferred as to the matters embraced 
 in the report of the majority. "It abundantly appears," 
 said he, " that the dissenting commissioner" met with his 
 colleagues in the legal sense of that term. No formal- 
 ity beyond actual consultation is requisite. He attended 
 the meetings of the commissioners for several months, 
 and put in a dissenting report at the end of the proceed- 
 ing. This is quite sufficient." 
 
 But I can indulge in no such assumption. Before me 
 it has been shown by uncontradicted evidence that, after 
 various meetings had been held by the three commission- 
 ers, and an area for assessments had been agreed upon, the 
 
23 
 
 majority ^ Jones and Wood, agreed, against the opposition 
 of Hennessy, upon the the awards and assessments to be 
 inserted in the preliminary report ; Hennessy thereupon 
 refused to allow his name to be affixed to the notice of the 
 completion and filing of such report, which the other 
 commissioners published, and refused to attend subsequent 
 meetings. Notwithstanding such refusal, Jones and Wood 
 continued to act, and on and after the 5th of October, 
 1871, numerous meetings were held by them alone, at 
 which the objections filed by persons affected by the pro- 
 ceeding were considered and disposed of, and awards for 
 damages were increased to the extent of over $117,000, 
 and assessments for benefit were materially changed, and 
 an estimate of the expenses of the proceeding, amounting 
 to over $135,000, was adopted, and the costs of the former 
 proceeding, which had been vacated, amounting to over 
 $165,000, were adopted as part of the general expenses of 
 the proceedings of the commissioners, and the clerks were 
 directed to prepare an amended report in accordance with 
 the changes thus made. At none of these meetings was 
 Hennessy present, nor was he at any time consulted as to 
 the business that was transacted at these meetings. On 
 the completion by the clerks of the amended report as thus 
 directed, Jones and Wood, without consulting Hennessy, 
 published the notice of twenty days required by law to be 
 given, and therein stated that, as required by the 4th sec- 
 tion of the Act of 18T1, they had completed their estimate 
 and assessment ; that the abstract of their proposed re- 
 port, showing the awards made for damage, and the assess- 
 ments imposed for benefit, had been deposited in the office 
 of the Department of Public Works, there to remain open 
 to public inspection and examination until the 21st of 
 December, 1871, and that on said last named day, their 
 fin >1 report, together with their said abstract, would be 
 presented to the Supreme Court for confirmation. On the 
 21st of December, 1871, Jones and Wood again met, and 
 in the absence of Hennessy, and without any consultation 
 had with him, they signed the final report, and thereupon 
 presented it to the court. Upon the hearing had on such 
 report, Hennessy, without notice by publication or other- 
 wise, presented a minority report, which he had prepared 
 
24 
 
 without notice to or consultation with his two colleagues. 
 The contents of the same have not been disclosed, but 
 from the opinion of Mr. Justice Gilbert, it appears that in 
 it Hennessy dissented from the conclusions arrived at by 
 his colleagues. The only action taken by the court on 
 both of said reports, was the making of an order referring 
 the majority report back to the two commissioners who 
 had made it, for revisal and correction in certain particu- 
 lars indicated in an opinion tiled at that time. In com- 
 pliance with such order, the said report was revised and 
 amended by Jones and Wood, and thereupon confirmed- 
 Hennessy had nothing whatever to do with making these 
 corrections, nor was he consulted in regard thereto, and 
 there is not a particle of evidence in the case from which 
 his assent to the terms of the report, which was confirmed, 
 could be implied. 
 
 These facts clearly entitle the plaintiff to the relief de- 
 manded, provided : 
 
 (1.) He is in a position to invoke the aid of the consti- 
 tutional provision referred to, and he has not waived his 
 right so to do. 
 
 (2.) Provided the action will lie as brought; and 
 
 (3.) Provided this court has jurisdiction of the action. 
 
 As to the First Point: 
 
 On confirming the report of the majority of the com- 
 missioners, Mr. Justice Gilbert held, on the authority of 
 the cases reported in 4 Comst., 420, and 41 N. Y., 139, and 
 the General Term, by refraining to express an opinion 
 upon this point, may be deemed to have ratified it, that 
 the provision of the Constitution invoked by the plaintiff 
 has no application to the duty of the commissioners in fix- 
 ing a district of assessment or in apportioning the amount 
 assessed; that that is an exercise of the power of taxation 
 and not of the right of eminent domain, and that the 
 
25 
 
 statute (Act of 1813, section 188) authorizing two com- 
 missioners to perform the trusts and duties imposed on all, 
 govern this branch of the case. 
 
 The first of the two cases relied upon is the case of The 
 People, &c, v. The Mayor, &c, of Brooklyn, hereinbefore 
 referred to. It arose under the charter of the city of 
 Brooklyn, and related to the grading and paving of a 
 street, but did not involve the taking of land. The Su- 
 preme Court had annulled the assessment, holding: 
 
 (1.) That the assessment was not a lawful exercise of 
 the power of taxation. 
 
 (2.) That money is property; that it cannot be taken 
 from a citizen for public use by the right of eminent do- 
 main, without just compensation, and that the enhance- 
 ment in value of the relator's lands, by the grading and 
 paving of Flushing avenue, is not that just compensation 
 within the meaning of the Constitution ; and 
 
 ('■].) That the money not being taken by the just exer- 
 cise of either of these powers, is taken, or exacted, without 
 due process of law, and therefore in violation of the (>th 
 section of the first article of the Constitution, and the 
 assessment is void. 
 
 These grounds, and no others, were examined and over- 
 ruled by the Court of Appeals, and the remarks of Mr. 
 Justice Rugglea: "Noldnd was taken from the relators or 
 other persons assessed for the making of Flushing avenue; 
 the question, therefore, whether compensation for land 
 taken for such use could be made in estimated benefits 
 does not arise, 7 ' must consequently be read and considered 
 in the light of the claim advanced by the relators that their 
 money was taken for public use by the exercise of the 
 right of eminent domain. 
 
 The second case relied upon arose under the act of April 
 19th, 1859, entitled " An Act to provide for the closing of 
 the entrances of the tunnel of the Long Island Railroad 
 Company, in Atlantic street, in the city of Brooklyn, and 
 restoring said street to its proper grade and for the relin- 
 4 
 
26 
 
 quishnrent, by said company, of its right to use steam 
 power within said city." Under this act commissioners 
 were authorized to enter into an agreement with the rail- 
 road for the surrender of its franchises and road on con- 
 dition that the company should be willing to make a con- 
 tract; and in such case the commissioners were empowered 
 to levy assessments for the amount to be paid to the rail- 
 road company. The statute expressly authorized two of 
 the commissioners to act for the whole. The Court of Ap- 
 peals held that, as the act did not call for the taking of 
 property except pursuant to a contract to be made 
 therefor, andas the railroad company had voluntarily en* 
 tered into such contract and was satisfied with it, the ob- 
 jections of the relators who represented the land assessed 
 involved merely a question of the exercise of the taxing- 
 power by the Legislature, and that consequently the rela- 
 tors could not raise a constitutional objection which the 
 railroad had the right to waive and which it had waived. 
 
 These two cases, therefore, do not sustain the decision 
 of the Supreme Court to the effect that the plain tiff is 
 precluded from raising the objection. 
 
 Now, the case at bar involved in one and the same pro- 
 ceeding the compulsory taking of land by right of emi- 
 nent domain, and the assessment of the compensation to 
 be awarded for the land thus taken upon the property 
 deemed benefited, and the plaintiff has established not 
 only that the compensation was awarded in an illegal and 
 unconstitutional manner, but also that, by reason of this 
 infringement of the Constitution, he has been subjected 
 to increased taxation. The awards and assessments were 
 adjudicated upon by only two commissioners in one and 
 the same report, and they are therefore so indissolubly 
 connected that, unless the report, with the evidence now 
 before me, can be upheld under the Constitution and the 
 Revised Statutes, it cannot, in my judgment, be upheld 
 under the Act of 1813 or the Act of 1862, as an exercise of 
 the power of taxation. It is too clear for argument, iliat 
 it cannot be upheld as against a person whose land was 
 taken. W hy. then, should i! he upheld as against the 
 plaintiff in the face of the proof which he lias given that 
 lie sustained special and material damage by reason there- 
 
27 
 
 of, and in the face of the admission that has been made, 
 that proceedings have been taken by the defendants for the 
 collection of the assessments, and that plaintiff's lots 
 are liable to be sold therefor. Does not this proof rebut 
 the presumption upon which assessments for a public im- 
 provement not involving the taking of land, have been 
 heretofore held as a legitimate exercise of the power of 
 taxation? Most assuredly it does. 
 
 In view of the high rate of the general taxation to which 
 holders of real property within the city and county of Xew 
 York are already subjected and the enormous size to which 
 the debt of the city has been swelled within the last few 
 years, I have diligently searched for some tangible ground 
 on which to uphold the assessments in question, but have 
 been unable to discover any to which I, as a court, could 
 give effect. It is a familiar principle, that in the deter- 
 mination of rights, courts have nothing to do with conse- 
 quences, and it being my duty — which is paramount to all 
 other considerations — to enforce the constitution and the 
 laws enacted in pursuance thereof to the best of my ability 
 and understanding, and having no discretion in the mat- 
 ter, I feel constrained to hold, however much I may re- 
 gret the necessity of differing with the Supreme Court of 
 this department, that notwithstanding the fact that own- 
 ers representing about *3. 500,000 of land taken, and 
 persons representing about $1,500,000 of assessments 
 imposed for alleged benefit, have acquiesced in these pro- 
 ceedings, and that plaintiff has not offered to pay any 
 portion of the benefit which his property must have sus- 
 tained by the widening and straightening of Broadway, 
 the plaintiff is nevertheless in a position to invoke the aid 
 of the constitutional provision above referred to. Thus, 
 in House et ah v. The City of Rochester, 15 Barb., 517, 
 in which case the damages and recompense to the owners 
 of the lands taken for the improvement had been ascer- 
 tained by three assessors assigned by the Common Council 
 in pursuance of section 193 of the charter of the city of 
 Rochester (chap. 262 of Laws 1850), the General Term of 
 the Supreme Court for the Seventh Judicial District held 
 that that section was plainly in conflict with the Consti- 
 tution (Art. I. £ 7) and that the assessment based upon it 
 
28 
 
 was unauthorized and void. "That the defendant after- 
 wards paid the owners of the land taken/' Says Welles, 
 P. J., in delivering the opinion of the court on that oc- 
 casion, " the amounts ascertained by the assessors for their 
 damages and recompense, and received conveyances of the 
 lands, cannot have a retroactive operation so as to heal 
 the defect and make valid a proceeding which was merely 
 void. At the time the assessment was made there was no 
 legal basis for it to rest upon, and the subsequent pur- 
 chase by the defendant and conveyance by the owners of 
 the land taken could, at most, be the foundation of a new 
 or subsequent assessment, but would not authorize the 
 issuing a warrant to collect the previous void assessments." 
 
 Nor has the plaintiff waived his right to constitutional 
 protection. The evidence plainly shows that he has in- 
 sisted upon it at every stage of the proceedings before the 
 commissioners, before the Supreme Court, and in this 
 action, so that if any blame attaches anywhere, it attaches 
 solely to the officers of the Corporation, who persisted in 
 going on in the face of plaintiff's objection. 
 
 And, finally, it is quite apparent that the infirmity of 
 the commissioners is not a mere irregularity, technicality, 
 omission of duty or defect in authority within the true 
 intent and meaning of chap. 580 of the Laws of 1872. It 
 goes not only to the jurisdiction, but at the same time 
 constitutes a palpable violation of the Constitution. It 
 therefore invalidates the report and the assessments levied 
 under it. 
 
 As to the Second Point. 
 
 In considering the point raised by the defendants, that 
 the action will not lie as brought, I will concede that 
 Chancery never had the power to interfere with, or set 
 aside, an assessment made by commissioners of estimate 
 and assessment, under the authority of a statute for pur- 
 posi - of local improvement, on the mere ground of mis- 
 take in the judgment of the commissioners and of the 
 Common Council, or of the court in ratifying it, when 
 
29 
 
 there was no allegation of partiality or unfairness. In 
 such a ease the remedy, if any,, was always at law. 
 
 LeRoy v. the Mayor, &c, 4 Johns. Ch., 352. 
 
 Moores v. Smedley, G Johns. Ch., 28. 
 
 Patterson v. The Mayor, &c., 1 Paige, 114. 
 
 Whitney v. The Mayor, &c, 1 Paige, 548. 
 
 So, irregularities in the proceedings to confirm the as- 
 sessments which did not render them void, but only void- 
 able, were held not to authorize a court of equity to inter- 
 fere by injunction. 
 
 Patterson v. The Mayor, &c., 1 Paige, 114 ; 
 besides in 
 
 The Mayor, &c, of Brooklyn v. Meserote, 26 
 Wend., 132. 
 
 And in Howell v. The City oi Buffalo, 2 Abb.Ct of App., 
 Dec. 412, the doctrine was laid down that, " where the pro- 
 ceedings in a street improvement case are illegal and void, 
 and such illegality appears on the face of the proceeding*, 
 it is not a proper case for equity jurisdiction and relief. 
 To constitute a cloud which the court will interfere to re- 
 move, it must appear that it is prejudicial, and that in- 
 volves the 'existence of some reason to apprehend injury, 
 or that it is set on foot and relied upon to the prejudice 
 of the title. Where, therefore, the so-called cloud has not 
 even the appearance ot validity or substance as where it 
 appears on the face of the very documents or proceedings 
 upon which a claimant must rely, and which he must 
 produce, that there is no legal validity in the claim, there 
 is no ground for invoking the aid of a court of equity, 
 for there is, in truth, no injury and no ground for appre- 
 hension of injury.'' 
 
 The correctness of the decision in Howell v. The City of 
 Buffalo, has since been questioned in Hatch v. The City of 
 Buffalo 38 N. Y.,276, and in Allen v. The City of Buffalo, 
 39 N. Y., 386; but it is not necessary to question it here, 
 for all the authorities agree that, where the assessment 
 appears to be valid on the face of the record, and the de- 
 fect can only be made to appear by extrinsic evidence, 
 particularly if that evidence depends upon oral testimony, 
 
30 
 
 it does present a case for invoking the aid of a Court of 
 Equity to remove it as a eloud upon the title. 
 
 Scott v. Onderdonk, 14 N. Y., 9. 
 
 Haywood v. The City of Buffalo, 14 N. Y., 
 534. 
 
 Ward v. Dewey, 16 N. Y., 519. 
 
 Hatch v. The City of Buffalo, 38 N. Y., 276. 
 
 Allen v. The City of Buffalo, 39 N. Y., 386. 
 
 Crooke v. Andrews, 40 N. Y., 547. 
 
 Newell v. Wheeler, 48 N. Y., 486. 
 
 Baldwin v. The City of Buffalo, 29 Barb., 396. 
 
 In the present case the assessments complained of, 
 which amount to $30,000 and upwards, were entered in 
 the record of title of assessments confirmed, which is kept 
 in the office of the clerk of arrears in the Comptroller's 
 Department, pursuant to the provisions of chap. 381 of 
 the Laws of 1871, and they are an apparent valid lien of 
 record upon the plaintiff's lots so assessed, and such re- 
 cord, under such statute, is presumptive evidence of the 
 facts therein contained. Moreover, the defendants have 
 admitted the fact to be, that proceedings have been taken 
 by them for the collection of such assessments, and that 
 plaintiff's lots are liable to be sold therefor, under the sta- 
 tutes for the collection of assessments in the city of New 
 York. 
 
 Under such circumstances, equity will not refuse to en- 
 tertain the action. 
 
 In passing upon the proceedings of the Commissioners 
 of Estimate and Assessment, the Supreme Court acts under 
 powers specially conferred upon it by statute, and although 
 it acts as a court (Matter of Canal and Walker streets, 
 12 N. Y., 406, and cases there cited), and not as a mere 
 commission of revision, as intimated in the earlier cases, 
 it acts, nevertheless, as a court of limited jurisdiction 
 that has been specially designated for that purpose. The 
 exercise of that special jurisdiction does not interfere 
 with the exercise by courts of equity of their ancient and 
 well established jurisdiction to remove incumbrances as a 
 cloud upon title. In the matter of the Commissioners of 
 the Central Park (Riverside Park Case), 50 N. Y., 494, 
 
31 
 
 the Court of Appeals gave as reasons for holding- that no 
 appeal lies to that court from the order of confirmation of 
 the Supreme Court, that whenever the proceedings are 
 radically defective for want of conformity to the law, or 
 for any other reason, the remedy of any party aggrieved, 
 is by resisting the payment of the assessment or retaining 
 his property, as the case may require, and that thereupon 
 the validity of the proceedings will be open to contesta- 
 tion by such party. 
 
 Xor is the case of Lennon vs. The Mayor, &c. (not yet 
 reported), an authority to the contrary. In that case the 
 Court of Common Pleas had held that the assessment, 
 which was solely for work done, and not for land taken, 
 although originally void for want of publication of the 
 resolution or ordinance authorizing the work, was validated 
 by the Act of 1872 (chap. 580, § 7), but that it became 
 valid only from the time of the passage of that act, and 
 that, as the sale had been made in September, 1871, when 
 no valid assessment existed, and had not been rendered 
 valid by the Act of 1872, the sale should be set aside, but 
 that the assessment should stand. It was with reference 
 to such an assessment that the Court of Appeals, on 
 affirming the decision, and on plaintiff 's appeal from it, 
 said that a plaintiff has no such constitutional right to 
 the aid of a court of equity to remove snch cloud upon 
 his title, that the Legislature may not deprive him of 
 that particular remedy. It is only when the pretended 
 lien is sought to be enforced by the taking of his prop- 
 erty that the owner is protected by the Constitution. If 
 the assessment in question has not been effectually val- 
 idated, the plaintiffs may resist its collection or the title of 
 any purchaser who may claim by virtue of a sale had 
 under it. Their constitutional rights will then come di- 
 rectly in question. But no such right is violated by pre- 
 cluding them from taking the initiative to remove the 
 apparent lien upon their property. v 
 
 In the present case the plaintiff waited until, as has been 
 admitted, proceedings had been commenced for the col- 
 lection of the assessments, and then brought his action to 
 resist and restrain such collection. Neither at the time 
 of the commencement of such action, nor at the time of 
 
32 
 
 the trial and submission of issues, had the assessments 
 been validated, or had the courts of equity of this State 
 been deprived of their ancient jurisdiction to entertain 
 such a suit. Since the trial, namely, May 2, 1874, it is 
 true, an act has been passed (chap. 312 of Laws 1874), 
 which provides that " hereafter no suit or action in the 
 nature of a bill in equity or otherwise shall be commenced 
 for the vacation of any assessment in said city or to re- 
 move a cloud upon title, but owners of property shall 
 hereafter be confined to their remedies in such cases to 
 the proceedings under the act hereby amended/' The act 
 thus amended and referred to is the Act of April 17th, 
 1858, which provides for a summary application to a judge 
 of the Supreme Court. But as this recent enactment in 
 express terms prohibits only future actions and is not 
 made applicable to actions pending, it would be a work of 
 supererogation to consider in how far it is a valid exercise 
 of legislative power. 
 
 As to the Third Point. 
 
 I do not understand that the defendants deny the power 
 of this court to remove, in a proper case, an incumbrance 
 as a cloud upon title, nor could such power be well ques- 
 tioned at this late day. That by section 33 of the Code 
 not only common law jurisdiction but also equity powers 
 were conferred on this court, was expressly determined in 
 Forrest vs. Forrest, 25 N. Y., 501. In the actions enumer- 
 ated in sections 123 and 124 jurisdiction co-equal with the 
 Supreme Court was given to it, and in such cases the 
 summons could at all times be served in any part of the 
 State. Kerr vs. Mount, 28 N. Y., 059. In all other cases 
 in which an action will lie, this court, except in respect to 
 the person of the defendant, also had co-equal jurisdiction 
 with the Supreme Court conferred upon it by the Code. 
 Van Pelt vs. Metallic Spring Co., 13 Abb. Pr., N. S., 325. 
 By the 6th Article of the Constitution adopted in 1869, 
 (he court was continued with the powers and the jurisdic- 
 tion it then had and sucb further civil and criminal 
 jurisdiction as might be conferred by law ; and under the 
 power thus granted, the Legislature conferred upon it 
 
33 
 
 " original jurisdiction, at law and in equity, concurrent 
 and co-extensive with the Supreme Court, of all civil 
 actions, and of all special proceedings of a civil nature." 
 Chap. 239 of Laws 1873. The effect of the statute last 
 referred to upon the jurisdiction of the Superior Court 
 was fully considered in Spyer vs. Fisher, decided by this 
 court at General Term in February, 1874. It requires no 
 further discussion here. 
 
 But the defendants deny the jurisdiction of this court, 
 on the ground that the action of the Supreme Court, in 
 confirming the report, was final and conclusive, and that 
 such final decision cannot be reviewed, impeached or re- 
 versed in this suit. As a whole, it is true, such decision 
 cannot be reviewed or reversed by any other court, and as 
 to all parties who have acquiesced in it, directly or by legal 
 implication, it will and must remain final and conclusive. 
 But that at the suit of a party who has not waived his right 
 to question the validity of the proceedings, a court of 
 equity may, nevertheless, in a proper case, grant relief as 
 to such party only, and that this is a proper case for such 
 relief has already been sufficiently demonstrated. And 
 it will still more clearly appear, when it is considered that 
 on the motion for the confirmation of the report, nothing- 
 is submitted to the Supreme Court but the fitness of the 
 commissioners, the regularity of the proceedings of the 
 corporation and of the commissioners, and the justness of 
 the estimate and assessment, The review of the justness 
 of the estimate and assessment extends to matters of 
 principle only, and not to mere questions of value. In re- 
 spect to the latter, the report is in the nature of the ver- 
 dict of a jury upon a question of fact. Objections raised 
 on the hearing of the motion to confirm the report are in 
 the nature of an appeal from the commissioners, and can 
 properly be decided only upon the affidavits and evidence 
 they had before them. New affidavits may be received in 
 support of, but not to oppose, the report. 
 
 Matter of William and Anthony streets, 19 
 Wend., 678 ; followed in matter of John 
 and Cherry streets, 19 Wend., 659 ; and 
 matter of Twenty-ninth street, 1 Hill, 189. 
 
34 
 
 This being so, it was held in Embury v. Connor, 3 N. 
 Y., 511, that an order of confirmation is not an adjudica- 
 tion upon the effect of the proceedings, such as to conclude 
 owners from subsequently raising a question as to their 
 legal effect. 
 
 And in Biker et al. v. The Mayor, &c, of New York, 3 
 Daly, 174, it was held, that the Statute of 1813, being sum- 
 mary in its nature, should be strictly construed; that un- 
 der it the commissioners have an abstract duty to per- 
 form, clearly stated and easily understood, which must be 
 performed, to be final, in the manner prescribed, and to the 
 extent only which is expressly defined; that neither the 
 Supreme Court nor the consent of the parties interested 
 can enlarge the powers of the commissioners; and that, 
 consequently, the confirmation of the report of the Su- 
 preme Court, in a particular case, though conclusive in all 
 acts which the commissioners had the power to perform, 
 is not so as to matters beyond their jurisdiction. 
 
 In conclusion, it may be well to point out that chap. 379 
 of the Laws of 1860 provides that the Supreme Court of 
 the First Judicial District, the Court of Common Pleas, 
 and the Superior Court of the city of New York, shall 
 have exclusive jurisdiction of all actions or special pro- 
 ceedings wherein the Mayor, Aldermen and Commonalty 
 of the city of Xew York are made a party defendant, and 
 that, although by chapter 586 of the Laws of 1867, such 
 jurisdiction was confined to the Supreme Court, it was re- 
 conferred upon the Superior Court and the Court of Com- 
 mon Pleas by the re-enactment, pursuant to sec. 8 of chap. 
 853 of the Laws of 1868, of all the provisions of chap. 379 
 of the Laws of 1860, and continued in force by the 6th 
 article of the Constitution. 
 
 Having thus considered the case as made by plaintiff, in 
 all its bearings, and having been unable to discover in the 
 objections raised by the defendants any tangible reason 
 for declining to interfere, my final conclusion is that the 
 plaintiff is entitled to the relief demanded in the com- 
 plaint, and judgment must be entered accordingly.