In the Matter of the Petition of Deering

Rapallo, J. The principal question-in this case is whether the commissioners of Central park and the departments of public parks and -of public works, as the successors to the powers of such commissioners, were authorized by law to do the work of regulating, grading, curbing, guttering and flagging Tenth avenue north of One Hundred and Fifty-fifth street, or whether the *6 authority to order this work to be done was vested in the common council. There are various other questions in the case; but if the one stated is determined in favor of the petitioner, it is decisive of this appeal. There is no question but that the power to order the work was vested in the common council, unless by some statute it was transferred to the commissioners of Central park. The statute relied upon by the respondents as effecting such transfer, is chapter 565 of the Laws of 1865. .Other statutes are referred to for the purpose of fortifying the interpretation of that act claimed by the respondent; but the power of the commissioners of Central park, if it existed, must be found in the act of 1865!" When that act was passed, Tenth avenue, as it then was and still is located, had been laid out from Twenty-first street to King’s Bridge by commissioners appointed under the act of 1807. This embraces the parts of the avenue upon which the improvements now in question, so far as the petitioner’s land is concerned, were made. It had been opened for that distance by order of the common council, and the report of the com-, missioners of estimate and assessment for such opening had been confirmed in 1838, and the title as far north as One Hundred and Sixtieth street had been thus acquired. Subsequently, and prior to 1850, the avenue had been laid out and opened from One Hundred and Sixtieth street to One Hundred and Hinety-fourth street, and the title had been acquired, in part in like manner and in part by private cession, arid the avenue had been worked and improved from time to time by the common council as one of the avenues of the city, and used by the public as such. In 1860 an act was passed (Laws of 1860, chap. 201) appointing commissioners to lay out streets, avenues, efc'c., in that part of the city lying north of One Hundred and' Fifty-fifth street, and in that act it was provided that nothing therein should authorize the closing of Tenth avenue. This avenue had.therefore been laid out and opened, and was one of the recognized and established avenues of the city. *7 While these conimissioners were proceeding with the execu- • tian of their powers the act of 1865 was passed, and it now becomes necessary to examine the provisions of that act, to determine whether it conferred upon the Central park commissioners the power of doing the work in question on Tenth avenue. By the first section of the act, the commissioners of Central park were vested with exclusive power to lay out streets, roads, squares and public places within that part of the city northward of One Hundred and Fifty-fifth street. By the second section they were empowered to make the necessary surveys, and cause maps to be made from time to time, showing the width, location, grades, etc., oí the streets, etc., to be laid out by them, and were directed to file such maps; and by the third section these maps were made conclusive as to the location, width and grades of the streets, etc., exhibited upon them. These complete the provisions as to the laying out of streets, etc. The next section (§ 4) relates to the opening of such streets, etc., and provides that the commissioners, in behalf of the corporation of the city, are authorized to acquire title to all or any of the lands required for the streets, etc., so laid out by them, whenever they shall deem it to the public interest so to do, and for that purpose to make application to the Supreme Court for the appointment of commissioners of estimate and assessment. The proceedings are to conform to the acts relative to opening streets, etc., in the city of Hew York, and those acts are made applicable to the streets so laid out by the Central park commissioners, to the same extent as if such streets had been laid out under the act of 1807. Sections 5, 6 and 7 relate to the assessment and payment of damages for land taken, and assessments for the expenses of the opening, and section 8 contains the authority claimed for doing the work of regulating, grading and improving the streets, etc. This is the only section under which such authority can be claimed, and it must therefore be carefully examined. This section (§ 8) declares that “ upon the .confirmation of *8 the report of commissioners of estimate and assessment appointed pursuant to this act, as to the streets, roads, public squares and places so laid out by said commissioners of the Central parle, as herein provided, or as to any portion thereof, or whenever thereafter the commissioners of the Central park shall deem it to the public interest so to do, it shall be lawful for the said commissioners of the Central park, from time to time, to cause such of said streets, roads, squares or places as they may designate for that purpose, to be regulated, graded and improved as streets or as country roads,” etc., amd for that pu/rpose they are vested with the powers exercised by the corporation as to other streets and roads. This is the grant of power under which it is claimed that the commissioners of Central park were authorized to regulate, grade and improve the then existing Tenth avenue, above One Hundred and Fifty-fifth street, and the question is whether section 8 was intended to apply to Tenth avenue, or its language is such that it is capable of being so applied. It is very clear that the power of the Central park commissioners to do the work of regulating, grading and improving streets, etc., within the district described in the act was limited to streets laid out by them. Tenth avenue, north of One Hundred and Fifty-fifth street, was not in fact laid out by them for it had been not only laid out, but opened, and adjacent property assessed for such opening, years before the passage of the act of 1865, and the commissioners of the Central park made no change whatever in its location or width. On the map filed by them it appears precisely as it was laid out by the commissioners under the act of 1807' It is contended that by a liberal interpretation of the act of 1865, the adoption of this avenue by the Central park commissioners may be treated as a laying out thereof by them, and that this construction should be put upon it, for the purpose of carrying out the supposed intention of the legislature to place all that part of the city lying north of One Hundred and Fifty-fifth street under the control of the commissioners of the Central park. But in the effort to give this construction to the act, and thus to *9 extend the power of the commissioners to do the work in question to this avenue, we are encountered with the difficulty that section 8 is so framed that the power to do the work is restricted not only to new streets, etc., laid out by the commissioners of the Central park, but to streets opened by them under the act; for the power to do the work is given only in respect to streets as to which the report of commissioners of estimate and assessment appointed under the act of 1865 has been confirmed. The language of the section is in substance that upon the confirmation of such report, as to streets laid out by the commissioners of the Central parle, or at any time thereafter, it shall be lawful for them, from time to time," to cause such of said streets as they may designate, to be improved, etc. The confirmation of the report of commissioners of estimate and assessment appointed under the act of 1865, as to a street or avenue, is thus expressly and in the clearest terms made a condition precedent to the attaching of the power of the commissioners of the Central park to do the work of improving such street. Now as to Tenth avenue this condition was not and could not be complied with. No commissioners of estimate and assessment were appointed under the act of 1865, for opening Tenth avenue, nor could it be supposed that any report of any such commissioners would ever be confirmed. The condition precedent contained in section 8 so plainly and absolutely confines the power of doing the work in question to new streets opened, as well as laid out, under the act of 1865, and as to which commissioners of estimate and assessment had been appointed under that act, that it is beyond our power, by any construction, to extend it to streets riot thus laid out or opened. The construction claimed by the respondent would require us to totally reject and strike out all the qualifications and conditions expressed in the section, and to read it as saying that it shall be lawful for the commissioners of the Central park to regulate and improve all streets, etc., northward of One Hundred and Fifty-fifth street, by whomsoever laid out or opened, and, without the confirmation of the report of commissioners of estimate and assessment appointed *10 under the act of 1865. Such a manner of construing a statute is not permissible. Effect must be given if possible to every part of the act. The language which limits the power of the Central park commissioners to improve, to streets laid out by them, and which requires that the report of commissioners of estimate and assessment appointed u/nder the act of 1865, as to the street to be improved, be first confirmed, is perfectly intelligible and capable of being effectuated. It cannot be stricken by us out of the statute. In view of the fact that' Tenth avenue had already been laid out and opened, and improvements made thereon,, and that it was under the charge of the city government, the only rational construction qf the section by which effect can be given to its limitations is, that it was not intended to take away from the common council or transfer to the commissioners of the Central park the authority to provide for and direct the regulating, paving and improving of that avenue, but to place under the jurisdiction of such commissioners, for those purposes, only the new streets to be laid out by them and opened under their direction under the act of 1865. The act of 1865 was a substitute for the act of 1860 (chap. 201), and by section 12 of the act of 1865 the powers of the commissioners under the act of 1860, and all their maps, surveys, etc., were transferred to the commissioners of the Central park.' The act of 1860 (chap. 201), as before stated, expressly recognized Tenth avenue as an avenue which had been opened, and prohibited its being closed. When in face of this fact the eighth section of the act of 1865 confined the power of the commissioners of the Central park to do the work of regulating, improving, etc., to streets laid out by them and opened under the act of 1865, it must be assumed that they intended that Tenth avenue should remain, as it had been for many years, under the jurisdiction of the common council, so far,as related to its regulation and improvement. The act of 1865 does not, it is true, contain the prohibition against closing Tenth avenue; but it must also be observed that it confers no' express power to close it, and so long as it remained .unchanged it cannot be treated as an avenue laid out or opened under the. act of 1865. *11 Chapter 367 of the Laws of 1866 is referred to by the learned counsel for the respondent as supplementing the authority contained in the act of 1865. That act authorizes -the laying out and opening of St. Nicholas avenue, and section 7 contains a general provision that with respect to all streets, etc., required by law to be laid out or improved under the direction of the commissioners of the Central park, such commissioners shall possess all the powers possessed by them in respect to Central park and by the corporation of the city and the several departments thereof, etc., in respect to such matters. This provision does not aid the case, for it applies only to improvements duly authorized, and declares the powers of the commissioners in respect to such improvements. It does not give power to make improvements not previously authorized, nor can it justly be construed as intending to add the power to improve, where a mere power to lay out had been previously given. The words are used distributively. The provision in the same section, that the commissioners may do all work required to be done by them by day’s work or by contract, would be material if it were established that the work now in question was work required to be done by them, but it does not affect the main question. None of the other statutes cited bear upon that question; and I am unable to resist the conclusion that the jurisdiction of providing for and directing the grading, regulating and improving Tenth avenue above One Hundred and Fifty-fifth street never was vested in the commissioners of the Central park, and consequently did not pass to the department of public parks or of public works, as successors to the powers of the commissioners of the Central park, but continued in the common council. It necessarily follows that the objection taken in the petition and proved upon the hearing, that there was no resolution or ordinance of the common council authorizing the work in question, is fatal to the assessment. The order of the General Term should be reversed and that of the Special Term affirmed, with costs.