In the Matter of the Application of The City of New York, Respondent, to Acquire Certain Real Estate at Massapequa in the Towns of Hempstead and Oyster Bay, in the County of Nassau, for the Purposes of Water Supply. Edward H. Floyd-Jones and Others, Appellants

In the Matter of the Application of The City of New York, Respondent, to Acquire Certain Real Estate at Massapequa in the Towns of Hempstead and Oyster Bay, in the County of Nassau, for the Purposes of Water Supply. Edward H. Floyd-Jones and Others, Appellants. Second Department, January 11, 1907. Eminent domain — selection of lands for condemnation for water supply of city of New York — no power to review action of board of estimate and apportionment. In a proceeding under section 484 et seq. of the charter of the city of New York to condemn lands for water supply in the borough of Brooklyn, it is for the board of estimate and apportionment to determine what lands shall be taken, and its action cabnot be overruled or changed either by the commissioners of appraisal or by the court. The scheme of the statute is that the lands must be designated by the board of estimate and apportionment after a hearing; the provision that the court may add other property and that the commissioner may change the maps for the ' more efficient carrying out of the provisions of the act, refers only to the car-' rying out of the changes made by the board of estimate and apportionment subsequent to its first adoption of maps. Appeal by Edward H. Floyd-Jones and others from an order of the.Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Massau on the 28th day of June, 1906, confirming the report of commissioners of appraisal herein. Joseph A. Flannery, for the appellant William M. Polk. Augustus N. Hand [James C. Kellogg with him on the brief], for the appellants Edward H. Floyd-Jones and others. Edward H. Wilson [James D. Bell and William B. Ellison with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: This is a proceeding of the city of New York to acquire real estate on Long Island for water supply in the borough of Brooklyn pursuant to sections 484, et seq., of the city charter. Two property owners’ appeal from the order of the Special Term confirming the •report of the commissioners of appraisal. They say that the report is illegal in that it appraises and provides payment for only part of the lands of the appellants of which they have heen divested of title by the proceeding. While the commissioners were sitting the commissioner of water supply changed the map of lands to be taken so as to take only a part of the lands of the appellants shown on the maps on which the proceeding was instituted and which the commissioners were appointed to appraise, and the commissioners of appraisal followed this new map. The exact point of dispute is this: The commissioner of water supply has to prepare maps of lands he proposes to take and submit them’to the board of estimate and .apportionment, which’ may “ adopt, modify or reject ” them and substitute others instead. ,It can only adopt maps after giving all persons interested an oppoptunity to be heard by a prescribed notice. The maps so adopted have to be filed in the office of the clerk of the county in which the land is. The- commissioner must also file a copy of them in his office, and then (says the statute) they “ shall'be the map or maps-of the real estate to be acquired, subject to such changes or modifications as the said commissioner may from time to time deem necessary for the more efficient carrying out of the provisions of this act ” (Sec. 486). The corporation counsel then applies to court for the appointment of commissioners of appraisal of the lands shown on such map; and on the filing of the oath of office which the said commissioners are required by the statute to take, “ the said city of New York shall be and become seized in fee of all those parcels of real estate which are shown on the said map,” etc. (Secs. 490-495). The commissioners have to procure copies of the said maps, “ view the real estate laid down on said maps,” and hear the owners and other persons interested therein and the city, and make a report of their appraisals (Sec. 495); and application has to be made to court by the corporation counsel on notice for the confirmation of this report. It is then provided (Sec. 506) that the court has power at any time “ to amend any defect or informality in any of the special proceed-' ings authorized by this act as may be necessary, or to cause other property to be included therein,” etc. Taking this latter provision, and the previous one that the maps adopted after a hearing to the property owners by the board of estimate and apportionment, shall be the maps of the real estate to be acquired, “subject to such changes or modifications as the said commissioner may from time to time deem necessary for the more efficient carrying out of the provisions of this act,” the learned corporation counsel argues that such adopted maps may be changed by the commissioner of water supply or by the court without authority from the board of estimate and apportionment. I do not see how it can be held that the statute so carefully requires the determination of that board after notice and heaving to all interested only to provide in the next breath that their action could be substantially upset at the mere will of the commissioner or of the court without any hearing at all. . On the contrary, the statute creates a system, viz., that the land must be designated by the board of estimate and apportionment after a hearing as a basis for taking. it; and when it provides that the court niay a-dd other property, and that the commissioner may change the maps “ for the more efficient carrying out' of the provisions of this act,” it has reference to the carrying out of changes made "by the board of estimate and apportionment subsequent'to its first adoption of maps. The filing of such maps divests the Owners of title and vests it in the’ city. The system does not contemplate. that lands of which the title thus stands transferred shall not he taken, nor that lands the title of which has not thus been transferred shall he taken. ■ In a word, it is for the hoard of estimate and apportionment to determine what lands shall be taken, and its action cannot be overruled or changed by either the' commissioner or the court.- -.It is for it, alone to make’ changes.' . The- order should be reversed and 'the report sent báck to thq commissioners to make their report accordingly. Woodward, Jenks, Hooker and Rich, JJ., concurred. , , Order reversed, with ten dollars costs and disbursements, and matter remitted to the commissioners for further consideration in accordance with opinion of Gatnob, J.