FIRST DEPARTMENT, JANUARY TERM, 1885. sons designing to use and enjoy the parks themselves, passing from one to the other, and not as public roads or highways, of this portion of the State. And for that reason the legislature was not prevented by this provision of the Constitution from designating and laying out these avenues. A point of a similar nature was considered in People ex rel. Seaver v. Green (52 How., 440), where it was held that this prohibition of the Constitution did not include a way of this description. The effect of this prohibition was further considered In Matter of Lexington Avenue (29 Hun, 303), where it was held that a public street of a city was not included within this provision of the Constitution. And that decision was affirmed by the Court of Appeals (92 N. Y., 629.) The same point again arose In Matter of Woolsey (95 N. Y., 135), and it was disposed of in the same way. If a street of a city is not within this part of the Constitution, then certainly a park-way intended for the mere purposes of passage from one of these designated parks to another, must be excluded from its operation, for such an avenue can, in no proper sense of the térm, be held to be either a road or a highway. And not being within this prohibition of the Constitution, the legislature, under its general legislative authority, did have the power to designate and lay out these particular avenues or ways. And its power to do that was in no manner abridged by the fact that an existing highway was included as a portion of one of the park-ways for it was within the power of the legislature to subordinate it as a street, to this particular use. (Matter of Prospect Park, etc., R. R. Co., 67 N. Y., 371, 377.) The other objections taken to the act are all founded wholly upon. the provisions and directions contained in it. It has provided for the appointment, by this court, of three disinterested persons to act as commissioners in estimating the compensation to be paid to the owners of these lands, for the appropriation of their property in this manner. That the object to which the property is designed to be appropriated is not a public use, has not been, as it could not be seriously urged, for taking lands for this object is devoting them to a public use as that phrase has been employed in the Constitution. (Holt v. City of Summerville, 127 Mass., 408.) It has, however, been urged that as the easterly portion of the Bronx park and all of Pelham park, together with their connecting park-way, are outside of the limits of the city of New York, that FIRST DEPARTMENT, JANUARY TERM, 1885. these lands cannot be appropriated to the use of its citizens. But neither the Constitution nor any statute of the State has required that lands to be taken for this object shall be within the corporate limits of the city, for the benefit of whose inhabitants they may be designed. All that can be required is that they shall be so contiguous to the municipal territory as to be conveniently accessible by its population for its use and enjoyment. And that such is the location of this property is to be assumed from the fact that the Pelham park, which is the farthest from the city, can be reached by traversing a distance of less than three miles beyond the present north-eastern boundary of the city. This land is directly accessible to the citizens by water from the entire easterly frout of the city, and if appropriated to this object will be readily accessible by means of other modes of conveyance which its appropriation will shortly and surely bring into existence. It is no more distant from the city than other parks are in other portions of the country, and at its present rate of increase in population the intervening territory must soon become a part of the city. At most, the appropriation of this land is but a short step into the future, and as it must be soon required for this object, if it is not wholly so at present, the time for obtaining it has already arrived. For the recreation and enjoyment of the present inhabitants of the city it will be advantageous, and for those who are soon to follow them it will be indispensable. And to meet the present and prospective wants of the city, prudence requires that the property should now be obtained. Similar reasons in point of necessity justify it as have already sustained the appropriation of land and water already to supply the necessities of the population of the city. That has been done at a greater distance beyond its boundaries than the land in question, and the authority to appropriate property in that manner, for those purposes, has neither been doubted nor denied, although the act under which it has been done has been before the courts for their consideration. (Dyckman v. Mayor, etc., 1 Seld., 434.) The commissioners, in case of their appointment, have been required, after taking and subscribing the requisite oath, to view the lands, tenements, hereditaments and premises described, and after causing such surveys, maps, profiles, plans and other things as they may judge necessary to be made, done and prepared for their FIRST DEPARTMENT, JANUARY TERM, 1885. use, to proceed with all due diligence to make a just and equitable estimate of the loss and damage to the respective owners, lessees, parties and persons respectively entitled to or interested in such lands, tenements, hereditaments and premises, and to report to the General Term of the Supreme Court without unnecessary delay. This provision has not directed the commissioners to take evidence concerning the value of the property, or any part of it, and the omission so to provide in direct terms is relied upon as a fatal constitutional defect in the act. But if the taking of such evidence should be held to be an essential step in the proceeding, then it may be included within the direction given to the commissioners, to proceed and make a just and equitable estimate of the loss and damage sustained by the owners in the taking of their property, for whatever is essential to the performance of what the law requires to be done is necessarily included in the direction given for the attainment of the result. (Stief v. Hart, 1 Comst., 20, 30.) Where it was said, in the opinion of JEWETT, C. J., that "where the law commands a thing to be done it authorizes the performance of whatever may be necessary for executing its commands." (Bouton v. City of Brooklyn, 15 Barb., 375.) But the Constitution has neither in terms nor by fair implication required that the commissioners shall take evidence concerning the value of the property intended to be appropriated. What it has required is that "when private property shall be taken for public use the compensation 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." (Const., art. 1, § 7.) The commissioners have not been directed, neither has the legislsture been required to provide that they shall take evidence upon this subject, but they have been left at liberty to proceed upon their own personal examination and investigation, and to act upon the knowledge or information obtained in that manner. This subject was considered in Kramer v. Cleveland etc., Railroad Company (5 Ohio, 140), where it was said in the prevailing opinion that "it is no part of the duty of the appraisers to hear evidence or arguments." "They proceed upon actual view of the property taken or injured, and from the information thus derived make the appraisal * * FIRST DEPARTMENT, JANUARY TERM, 1885. or assessment." (Id., 147.) In this respect the same duty has, in the same terms, been enjoined upon the commissioners, that was prescribed by section 178 of chapter 86 of the Laws of 1813, for commissioners to be appointed to appraise and estimate the damages for the appropriation of lands for the opening of streets in the city of New York. That act in a similar manner provided that "it shall be the duty of the said commissioners, after having viewed the lands, tenements, hereditaments and premises so required for the purpose of opening the said public square, or place, street, avenue or part, or section of a street or avenue, so to be opened, or for the purpose of laying out and forming the street or streets, or public place, so to be laid out and formed." etc.; "and after causing all such surveys, maps, profiles, plans and other things as they may judge necessary to be made, done and prepared for their use, to proceed to and make a just and equitable estimate and assessment of the loss and damage," etc. (2 Revised Laws, 1813, 410.) The proceedings so provided for were, for many years, carried on under this authority, after the provision already mentioned had been made a part of the Constitution of the State, and it was not supposed to.infringe upon this restraint or any other contained in the Constitution. This long continuance of the exercise of authority and the acquiescence in the propriety of the provisions creating it, are very strong evidence that in giving such a direction this provision of the Constitution has not been violated, and that this portion of the act is in no manner in conflict with it. But a substantial hearing before the commissioners upon the subject of compensation has been, in fact, provided for the owners of the land by the next section of the act. For it has directed that a true report, or transcript, of their estimates, shall be deposited by them in the office of the commissioner of public works of the city of New York, for the inspection of whomsoever it may concern, at least fourteen days before they shall make their report to the court. "And any person or persons whose rights may be affected thereby, and who object to the same, or any part thereof, may, within ten days after the first publication" of the notice provided for, "set forth their objection to the same in writing, to the said commissioners, who shall thereupon reconsider their said estimate, on the part or parts thereof so objected to, and in case the same FIRST DEPARTMENT, JANUARY TERM, 1885. shall appear to them to require correction, but not otherwise, they shall and may correct the same accordingly." The notice required to be published by this section is one of fourteen days. preceding the making of the commissioners report to the court, and it has been directed that it shall give a daily notice, by advertisement, for ten days after depositing the report or transcript of the estimate of such deposit in the office of the commissioner of public works. This déposit of the report or transcript, containing a statement of the estimates, together with the notice which it has directed shall be given, provides the owners of the property intended to be taken with ample means for discovering and contesting the estimates which the commissioners shall consider to be a fair equivalent for the land to be taken. And it will make them, as the notice previously provided for by the second section of the act, preceding the application for the appointment of commissioners, will also make them, parties to the proceeding. And they constitute a substantial compliance with that part of section 6 of article 1 of the Constitution, which declares that " no person shall be deprived of life, liberty or property, without due process of law." For it has been held that personal notice is not necessary to answer this requirement of the Constitution, but it may be a notice given by publication, as that shall be deemed to be proper in the judgment of the legislature, and be prescribed by law. Campbell v. Evans (45 N. Y.,.356, 359), Happy v. Mosher (48 id., 313, 317), Matter of De Peyster (80 id, 565, 572), Matter of Middletown (82 id., 196, 201) where it was said that "if opportunity to appear and be heard is secured, it is wholly within the power of the legisla ture to determine the form and time and manner of notice to be given." These proceedings, provided for by section 3 of the act, supplies the owners intending to contest the estimates, or judgment of the commissioners, with an ample opportunity to do that. For it requires 'the commissioners to deposit their estimates, or a transcript thereof, in a public office, where they will be accessible to the parties interested in knowing what the estimates may be, and afterwards provides for the publication of such notice as will supply them with the information and enable them to present their objections, in case the estimates shall turn out to be insufficient or unsatHUN-VOL. XXXIV t 57 |