Section 5-376
§ 5-376 Determination of additional sources of water supply; reports
to board of estimate. a. It shall be the duty of the commissioner of
environmental protection to proceed immediately and with all reasonable
speed, to ascertain what sources exist and are most available, desirable
and best for an additional supply of pure and wholesome water for the
city. The commissioner shall make such studies, investigations, surveys,
maps, plans, profiles, estimates and reports as the commissioner may
deem proper in order to ascertain the facts as to such sources and shall
report to the board of estimate with recommendations as to what action
should in the commissioner's opinion be taken with reference thereto. It
shall be lawful for the board of estimate and the commissioner to report
upon, consider and determine the project in parts or sections from time
to time as they may deem fit, so that the city may be able to obtain an
additional supply of water from one or more sources before the whole
additional supply contemplated may be obtained.
b. If at any time the board of estimate shall determine it to be
advisable that the needs of the city with respect to its water supply or
with regard to the delivery of such supply to points convenient for
distribution among the several boroughs shall be made the subject of
study and investigation, the commissioner of environmental protection
shall forthwith proceed with such studies and investigations and,
together with his or her recommendations, report to the board of
estimate. Upon receipt of any such report the board of estimate may
consider and act upon it in the same manner and with the same authority
as provided in this section and in any following sections.
Section 5-377
§ 5-377 Further reports to board of estimate; hearings; map or plan of
whole work to be approved and filed. a. The board of estimate upon the
receipt of such report or reports of the commissioner may adopt, modify
or reject the whole or any part of the same, and may cause such studies,
investigations, surveys, maps, plans, profiles, estimates and reports to
be made, and such further information to be obtained as the commissioner
shall deem expedient to enable him or her to act intelligently in the
premises. In case of the modification or rejection of the
recommendations in such report or reports or any part thereof by the
board of estimate, the commissioner in like manner as aforesaid shall
prepare and submit to the board of estimate further studies,
investigations, surveys, maps, plans, profiles, estimates and reports
and make such changes and modifications as shall seem proper to the
board of estimate, and shall continue so to do under the direction of
the board of estimate, until a map, plan or plans covering the entire
work contemplated by this subchapter shall be approved and adopted by
such board. The map, plan or plans may be made and adopted in parts or
sections from time to time, and may be changed or modified either before
or after adoption as the board of estimate may deem necessary for the
more efficient carrying out of the provisions of this subchapter.
b. The board of estimate prior to the adoption of such map, plan or
plans, or to a modification thereof shall afford to all persons
interested a reasonable opportunity to be heard respecting the same, and
shall give reasonable public notice of such hearing, at which testimony
may be produced by the parties appearing in such manner as the board of
estimate may determine, and each member of the board is hereby
authorized to administer oaths and issue subpoenas in any proceeding
pending before them under this subchapter. Notice of such hearing shall
be given, in addition to the above provision, by mailing to the
chairperson and clerk of the board of supervisors of the county where
the real estate to be acquired is situated a notice of such hearing at
least eight days before the time named in the notice.
c. A final map, plan or plans approved and adopted by the board of
estimate shall be executed in quadruplicate, one of which shall remain
on file with the clerk of the board of estimate, one shall be placed on
file in the office of the commissioner of environmental protection, one,
or a certified copy thereof, shall be filed in the county clerk's office
or register's office of each county in which any of the land affected
thereby is situated.
d. Provided, however, that no reservoir or other structure for the
storage or impounding of water, shall be constructed, at any time,
within the drainage area of the Esopus creek in the county of Ulster,
other than that designated in the reports of William H. Burr, Rudolph
Hering and John R. Freeman to the Honorable George B. McClellan, mayor,
chairman, board of estimate of the city of New York, as to the Ashokan
reservoir, the flow line of which shall not exceed elevation six hundred
feet coast and geodetic survey datum.
Section 5-378
§ 5-378 Entry to prepare maps and to post notice. The commissioner of
environmental protection, the commissioner's agents, engineers,
surveyors and such other persons as may be necessary to enable the
commissioner to perform his or her duties under this subchapter are
hereby authorized to enter upon any land, or water, for the purpose of
making surveys, examinations or investigations and preparing the maps,
plans and reports contemplated by this subchapter and for the purpose of
posting any notices that may be required to be published in like manner.
Section 5-379
§ 5-379 Real estate maps; preparation, submission and adoption
thereof. After the approval, adoption and filing of a final map, plan
or plans described in section 5-377 of this subchapter, the commissioner
shall prepare and submit to the board of estimate six similar maps of
the real estate to be acquired or affected for the purpose of carrying
out the said plan or plans, or any part thereof. Upon those maps there
shall be laid out and separately numbered the various parcels of real
estate acquisition of which is made necessary for the prosecution of the
work authorized by this subchapter, including the lands adjoining the
Esopus creek between the point on such creek, in the town of Shandaken,
Ulster county, where the Schoharie tunnel empties into such creek, and
the Ashokan reservoir of the city, in such county, the owners of which
lands shall be entitled to recover the decrease in value of such lands
by reason of any acts of the city under the provisions of this
subchapter or any previous act, such damages to be determined by a
commission in the same manner as damages for the taking of real property
are determined. On such maps, the property division lines existing at
the time of the survey shall be delineated, and there shall be plainly
indicated those parcels of which the fee, and over or through which
parcels the right to use and occupy the same temporarily or in
perpetuity, is to be acquired. The board of estimate may adopt, modify
or reject such maps in whole or in part and require others to be made
instead thereof. In case of such rejection, the commissioner of
environmental protection shall in like manner, as aforesaid, prepare and
submit others, until maps shall be approved by the board of estimate
covering the entire area required for the purpose of carrying out the
said plan or plans, or any part thereof. Such maps may be made and filed
in sections. One or more sections may be determined before the maps of
the whole construction are completed. Such sections shall be determined
and decided upon previous to the appointment of the commissions as
hereinafter provided for, and shall be so determined that one commission
shall not be appointed for a section covering more property than can
reasonably be passed upon and awards made by such commission within the
limits of a year from the time of the filing of the oaths, as
hereinafter provided. The proceedings hereinafter authorized may, in
like manner, be taken separately in reference to one or more of such
sections before the maps of the whole are filed. The work upon one or
more of such sections may be begun before the maps of the remaining
sections are filed. The maps when adopted by the board of estimate shall
be transmitted by such board to the corporation counsel, with a
certificate of such adoption written thereon and signed by a majority of
the board.
Section 5-380
§ 5-380 Maps; filing of. The corporation counsel shall cause one of
the maps described in section 5-379 of this subchapter, or a certified
copy thereof, to be filed in the office of the clerk of each county in
which any real estate laid out on such map shall be located except that
in any county in which there is a register's office, such map shall be
filed therein instead of in the office of the county clerk. The other
maps described in section 5-379 of this subchapter shall be disposed of
in the manner indicated in succeeding sections of this subchapter.
Section 5-381
§ 5-381 Application for appointment of commissioners of appraisal.
After such maps shall have been filed as provided for in the preceding
section of this subchapter, the corporation counsel, for and on behalf
of the city, upon first giving the notice required in the next section
of this subchapter, shall apply to the supreme court at any special term
thereof to be held in the judicial district in which the lands or some
part thereof shown on such maps, and the title to which it is proposed
to acquire in the proceeding thus instituted, is situated, for the
appointment of commissioners of appraisal. Upon such application the
corporation counsel shall present to the court a petition signed and
verified by the commissioner of environmental protection, according to
the practice of the court, setting forth the action theretofore taken by
the commissioner and by the board of estimate and the filing of such
maps, and praying for the appointment of commissioners of appraisal.
Such petition shall contain a general description of all the real estate
to, in, or over which any title, interest, right or easement is sought
to be acquired for the city for the purpose of this subchapter, each
parcel being more particularly described by a reference to the number of
such parcel as given on such maps, and the title, interest or easement
sought to be acquired to, in or over such parcel, whether a fee or
otherwise, shall be stated in the petition.
Section 5-382
§ 5-382 Notice of application for appointment of commissioners of
appraisal. The corporation counsel shall give notice in the City Record,
and in two public newspapers published in the city of New York and in
two public newspapers published in each other county in which any real
estate laid out on such maps may be located, and which it is proposed to
acquire in the proceeding, of the corporation counsel's intention to
make application to such court for the appointment of commissioners of
appraisal which notice shall specify the time and place of such
application, shall briefly state the object of the applications and
shall describe the real estate sought to be taken or affected. A
statement of the real estate to be acquired or affected for the purpose
of carrying out the said plan or plans or in any part thereof with
separate enumerations of the numbers of the parcels to be taken in fee,
and of the numbers of the parcels in which an easement is to be
acquired, together with the route of the tunnels and aqueducts by
courses and distances and of the greatest and least width of its
required easement or parcel of land with a reference to the dates and
places of filing such maps, shall be sufficient description of the real
estate sought to be so taken or affected. Such notice shall be so
published, once in each week, in each of such newspapers, for six weeks
immediately previous to the presentation of such petition; and the
corporation counsel shall in addition to such advertisement cause copies
of the same in hand bills to be posted up, for the same space of time in
at least twenty conspicuous places on the line of the aqueduct or in the
vicinity of the real estate so to be taken or affected and shall cause a
copy of such notice to be mailed to the owners of such real estate whose
names and addresses are known or are readily ascertainable. After the
original appointment of commissioners of appraisal pursuant to the
provisions of this subchapter, the corporation counsel may apply at a
special term of the supreme court in the same judicial district where
application for such original commission was made for the appointment of
a successor commission, upon first giving ten days' notice by
advertisement in the newspapers hereinabove described of his or her
intention to make such application.
Section 5-383
§ 5-383 Appointment of commissioners of appraisal; their
qualifications. At the time and place mentioned in such notice, unless
such court shall adjourn such application to a subsequent day and in
that event at the time to which the same may be adjourned, such court,
upon due proof to its satisfaction of the required publication and
posting aforesaid, and upon filing such petition, shall make an order
for the appointment of three disinterested and competent freeholders, at
least one of whom shall reside in the city and at least one of whom
shall reside in the county or one of the counties in which such real
estate shall be situated, as commissioner of appraisal to ascertain and
appraise the compensation to be made to the owners and all persons
interested in the real estate laid down on such maps as proposed to be
taken or affected for the purpose indicated in this subchapter. Such
order shall fix the time and place for the first meeting of such
commissioners.
Section 5-384
§ 5-384 Oath of commissioners of appraisal; filing thereof. Such
commissioners shall take and subscribe the oath or affirmation required
by article thirteen of the constitution and shall forthwith file the
same or a certified copy thereof in the office of the clerk of the
county in which the land or any part thereof is situated, and shall
forthwith file certified copies of such oaths in the office of the clerk
of the county of New York, and in the register's office in any county in
which there is a register's office and in which is situated any of the
real estate sought to be taken or affected by the proceeding.
Section 5-385
§ 5-385 Eligibility of commissioners for reappointment. No person
appointed a commissioner of appraisal in any proceedings conducted under
this subchapter shall be eligible for reappointment on any commission
provided for under this subchapter until three years shall have elapsed
since such person shall have finished the duties imposed upon him or her
as a commissioner under any previous appointment except a person
appointed to fill a vacancy occurring in a commission more than six
months after the original appointment of such commission, which said
appointee shall be eligible for one additional appointment to the
successor commission or any other commission.
Section 5-386
§ 5-386 Vesting of title; possession; removal of buildings or
improvements. On filing such oaths, in the manner provided in section
5-384 of this subchapter, the city shall be and become seized in fee of
all those parcels of real estate which are on the maps referred to in
section 5-379 of this subchapter delineated as parcels, of which it has
been determined that the fee should be acquired, and shall also be and
become vested of the easements, in, over, upon or through all those
other parcels of real estate which are on said maps delineated as
parcels in, over, upon or through which it has been determined that
easements should be acquired; and may immediately or at any time or
times thereafter take possession of the same or any part or parts
thereof without any suit or proceeding at law for that purpose;
provided, however, that before the city takes possession of the same it
shall pay to the respective owner or owners of each of such parcels of
real estate, which are upon such maps delineated as parcels of which it
has been determined that the fee should be acquired, (a) if located
outside the counties of Ulster, Greene, Sullivan, Schoharie and
Delaware, a sum of money equal to one-half the assessed valuation of
such real property as the same appears upon the assessment roll of the
town or tax district in which the same is situate for the year next
preceding that in which the city becomes seized in fee of each of such
parcels of real estate, and (b) if located in the counties of Ulster,
Greene, Sullivan, Schoharie or Delaware, a sum of money equal to fifty
per centum of the full valuation of such real estate. In the event that
a parcel so delineated on said map as a fee parcel is not separately
assessed on the assessment roll of the town or tax district in which the
same is situated but is assessed as a part of another tract, then the
amount which the city shall be required to pay or deposit under this
section shall be (a) if the parcel be located outside the counties of
Ulster, Greene, Sullivan, Schoharie and Delaware, the proportion which
the assessed valuation of the parcel acquired bears to the assessed
valuation of the entire property as a part of which said parcel is
assessed, and (b) if the parcel be located in the counties of Ulster,
Greene, Sullivan, Schoharie or Delaware, the proportion which the full
valuation of the parcel acquired bears to the full valuation of the
entire property as a part of which said parcel is assessed. The supreme
court in the judicial district in which the land is situated is hereby
authorized to make an order prorating such assessed valuation or full
valuation, as the case may be, and to determine the proportion of such
assessed valuation or full valuation, as the case may be, which the city
of New York shall be required to pay before taking possession of such
parcel. The city, at its option and by agreement with such respective
owner or owners, may, instead of paying to him or her or them the amount
or amounts hereinbefore required, pay to him or her or them a sum or
sums of money greater than but not more than twice the amount or amounts
hereinbefore required. For the purposes of this section only, "full
valuation" of real estate shall mean the assessed valuation thereof, as
the same appears on the assessment roll of the town or tax district in
which the real estate is situate for the year next preceding that in
which the city becomes seized in fee thereof, divided by the rate of
assessment of real property in such town or tax district for the same
year as finally recommended for adoption by the state tax commission
under the provisions of the real property tax law formerly contained in
sections fifty and one hundred seventy-four of the tax law. Deposit of
all moneys hereunder to the credit of, or payable to the order of the
owner, pursuant to the direction of the court, shall be deemed a payment
within the provisions of this section, and, thereupon, the commissioner
of environmental protection, or any person or persons acting under their
or its authority may enter upon and use and occupy to the exclusion of
any and all other persons all the parcels of real estate delineated on
such map for the purpose of carrying out the plan or plans, or any part
thereof, described in section 5-377 of this subchapter, provided,
however, that no buildings or improvements shall be removed or disturbed
within one year from the date of the filing of the oaths of the
commissioners unless thirty days' notice in writing is given to the
owner, or to his or her attorney, if any, by the corporation counsel of
the intention to make such removal, and affording the owner an
opportunity to examine the property with the commissioners of appraisal
and such witnesses as he or she may desire. If the owner of the property
can not be found with due diligence, and there is no attorney
representing such property or parcel, before removing, disturbing, or
destroying any of the buildings, or the improvements, a representative
of the commissioner of environmental protection or of the corporation
counsel shall cause measurements to be made of the buildings and
photographs of the exterior views thereof, which measurements and
photographs shall be at the disposition thereafter of the claimants, or
their attorneys, in case such claimants or their attorneys should appear
and demand the same before the case is tried.
Section 5-387
§ 5-387 Commissioners of appraisal; powers and proceedings thereof;
provisions for filling of vacancies. a. Any one of such commissioners of
appraisal may issue subpoenas and administer oaths to witnesses; and
they or any one of them, in the absence of the others, may adjourn the
proceedings from time to time in their discretion; but they shall
continue to meet from time to time as may be necessary, within the
judicial district where the lands or any part thereof may be located, to
hear, consider and determine upon all claims which may be presented to
them under the provisions of this subchapter. Within thirty days after
the commissioners have been appointed and have qualified, the city shall
furnish the commission with a list of the claims that have been filed
and are to be determined and the commissioners shall have full power and
authority to prepare a calendar of all such claims and to determine the
order and priority of the hearing of such claims; to set down the
hearing of any such claim for a day certain; and to order an inquest in
or a dismissal of any claim for failure of a party to appear at the time
designated for the hearing thereof unless the commissioners shall
determine that a reasonable excuse for such failure exists. They shall
view the real estate laid down on the maps and shall hear the proofs and
allegations of any owner, lessee, or other person in any way entitled to
or interested in such real estate or any part or parcel thereof, and
also such proofs and allegations as may be offered on behalf of the
city. They shall rule upon motions and objections made in connection
with the admission or exculsion of testimony or evidence in any hearing
before the commissioners and shall make findings upon which their awards
are made and separate findings upon which the fees and allowances are
based. They shall reduce the testimony taken before them to writing, and
after the testimony is closed, they or a majority of them, all having
considered the same, and having an opportunity to be present, shall
without unnecessary delay, ascertain and determine the just and
equitable compensation which ought justly to be made by the city to the
owners or the persons interested in the real estate sought to be
acquired or affected by such proceedings, including just and equitable
compensation to the owner of any leasehold taken or affected in the
proceeding. Such commissioners of appraisal shall make reports of their
proceedings to the supreme court as in the next section provided, with
the minutes of the testimony taken by them and the findings of fact made
by them, and they shall be entitled to the payments hereinafter provided
for their services and expenses to be paid from the fund hereinafter
provided.
b. In case of the death, resignation, refusal or neglect to serve of
any or all of such commissioners of appraisal, the corporation counsel
shall upon ten days' notice to be given by advertisement in the
newspapers designated as hereinbefore provided, apply to the supreme
court at a special term thereof, to be held in the judicial district in
which the land or any part thereof affected by the proceedings, is
situated, for the appointment of one or more commissioners to fill the
vacancy or vacancies so occasioned.
c. In the event that the corporation counsel shall fail, neglect or
refuse to make such application within thirty days after any such
vacancy shall have occurred as hereinabove provided, any person
interested in the proceeding may similarly apply after such
advertisement for the filling of any vacancy. The city of New York shall
be liable for the reasonable expenses of such advertisement together
with ten dollars costs of motion in the event of any such application by
any such interested person.
Section 5-388
§ 5-388 Report of commissioners; compensation for loss to railroad or
electric corporation or owner of water power; expenses. a. The
commissioners of appraisal shall prepare a report, and such copies
thereof as may be required. Such report or reports shall contain a brief
description of the several parcels of real estate so acquired, taken or
affected, with a reference to the map or maps as showing the exact
location and boundaries of each parcel; a statement of the sum estimated
and determined upon by them as a just and equitable compensation to be
made by the city to the owners or persons entitled to or interested in
each parcel so taken, or as to which any right, title, interest,
privilege or easement is taken, acquired or extinguished; and a
statement of the respective owners or persons entitled thereto, or
interested therein. In every case where the owners and parties
interested, or their respective estates or interests are unknown, or not
fully known to the commissioners of appraisal, it shall be sufficient
for them to set forth and state in general terms the respective sums to
be allowed and paid to the owners of, and parties interested therein
generally, without specifying the name of estates or interests of such
owners, or parties interested, or any or either of them.
b. Where loss, damage or expense, direct or consequential, has
resulted to any duly incorporated railroad corporation, operating a
steam railroad in any county in which land shall be acquired in
pursuance of the provisions of this subchapter, or by reason of any of
the matters in this subchapter involved, or any electric corporation, or
the owner of any water power on any of the streams or waters affected by
the provisions of this subchapter, the board of estimate is hereby
authorized and empowered to agree with such railroad corporation, or any
such electric corporation, or the owner of any such water power, upon
the compensation which shall be made to it for such loss, damage or
expense. In the event of no agreement being reached between such board
and such railroad corporation, or any such electric corporation, or the
owner of any such water power, the commissioners of appraisal appointed
to estimate damages for lands acquired in such county are hereby
authorized and directed to pass upon such claim and to make awards
therefor as provided in this subchapter.
c. Subject to review by the court as hereinafter provided, the
commissioners may also recommend such sums, if any, as shall seem to
them proper to be allowed, to parties appearing in the proceeding, as
expenses and disbursements including reasonable compensation for
witnesses and what sums, if any, ought to be paid to the general or
special guardian of an infant, idiot, or person of unsound mind, or to
an attorney appointed by the court to attend to the interests of any
known owner or party in interest who has not appeared in the proceedings
for expenses or counsel fees.
Section 5-389
§ 5-389 Filing of the commissioners' report. Such report signed by
such commissioners or a majority of them, shall be filed not more than
one year after the date of the filing of the oaths of the commissioners
in the office of a clerk of a county in which real estate sought to be
acquired may be situated and in case a part of the real estate is in
another county a duplicate report or certified copy shall be filed in
the office of the clerk of such other county, provided, however, that
the supreme court upon application and good reasons shown therefor may
extend the time for the taking of testimony or for the preparation and
filing of such report, or both, beyond one year for a period not
exceeding eight months. The commissioners of appraisal shall notify the
corporation counsel immediately upon the filing of a report.
Section 5-390
§ 5-390 Notice of hearing on report. The corporation counsel, or in
case of the corporation counsel's neglect to do so within ten days after
receiving notice of such filing, any person interested in the
proceeding, shall give notice that such report will be presented for
confirmation, modification (specifying the particulars of such
modification in respect to the amount of the award, witness fees or
other allowances made by the commissioners) or for rejection in whole or
in part to the justice of the supreme court appointing the
commissioners, or if the justice be unavailable, to a justice of the
supreme court at a special term thereof, to be held in the judicial
district in which the land or a part thereof is situated at a time and
place to be specified in such notice, and the objections, if any, to the
confirmation, modification or rejection of such report or any part
thereof, shall be heard at such special term. The notice shall contain a
statement of the time and place of the filing of the report and of the
copy or copies thereof, and shall be published once in each week in each
of the newspapers referred to previously in this subchapter, for at
least three weeks immediately prior to the presentation of such report
to the supreme court. As used in this section, section 5-391 and section
5-399 of this subchapter, the terms "modify" and "modification" shall be
construed to include an increase, a decrease or any other change in an
award, fee or allowance.
Section 5-391
§ 5-391 Hearing on the report. The application for the confirmation,
modification or rejection of the report shall be made to the supreme
court at a special term thereof held in the judicial district in which
the land or some part thereof is situated. Upon the hearing of the
application such court may confirm or modify such report or may in its
discretion order that the report or any portion thereof affecting one or
more parcels be referred to the same commission, or a new commission for
a new hearing, and make an order containing a recital of the substance
of the proceedings in the matter of the appraisal with a general
description of the real estate appraised and for which compensation is
to be made; and shall also direct to whom the money is to be paid or in
what bank or trust company and in what manner it shall be deposited by
the comptroller. Such order confirming or modifying the report shall
(except in case of an appeal, as provided in this subchapter) be final
and conclusive as well upon the city as upon owners and all persons
interested in or entitled to such real estate; and also upon all other
persons whomsoever.
Section 5-392
§ 5-392 Payment by the city. The city shall, within three calendar
months after the confirmation of the report of the commissioners of
appraisal, pay to the respective owners and bodies politic or corporate,
mentioned or referred to in such report, in whose favor, any sum or sums
of money shall be estimated and reported by such commissioners, the
respective sum or sums so estimated and reported in their favor
respectively, with lawful interest thereon, from the date of filing the
oath and certified copies thereof as by this subchapter required,
deducting therefrom all sums of money paid on account thereof as
provided in section 5-386 of this subchapter. In case of neglect or
default in the payment of the same within the time aforesaid, the
respective person or persons or bodies politic or corporate in whose
favor the same shall be so reported, his, her, or their executors,
administrators or successors, at any time or times, after application
first made by him, her, or them, to the comptroller for payment thereof,
may sue for and recover the same, with lawful interest as aforesaid, and
the costs of suit in any proper form of action against the city in any
court having cognizance thereof, and it shall be sufficient to declare
generally for so much money due to the plaintiff or plaintiffs therein
by virtue of this subchapter for real estate taken or affected for the
purpose herein mentioned, and the report of such commissioners, with
proof of the right and title of the plaintiff or plaintiffs to the sum
or sums demanded shall be conclusive evidence in such suit or action.
Section 5-393
§ 5-393 Limitation of time for presenting claims. All claims of every
name and nature under this subchapter, except claims provided for under
section 5-398, must be exhibited and presented to the commissioners of
appraisal having jurisdiction of the same within the following periods
of time:
(a) in the case of real estate acquired in fee or in which an easement
is acquired, within three years after title thereto shall have become
vested in the city;
(b) in the case of claims under section 5-423, within three years from
the date of the filing of the oaths of the commissioners appointed after
the acquisition by the city of New York of the real estate, the
acquisition of which is claimed to be the direct or indirect cause of
damage, or within three years from the execution of the plan or work,
the execution of which is claimed to be the direct or indirect cause of
damage.
In the case of real estate acquired in fee or in which an easement is
acquired, every person neglecting or refusing to present a claim within
such time shall be deemed to have surrendered his or her interest in
such real estate or his or her claims for damages thereto, except so far
as such person may be entitled as an owner of, or person interested in
the award, if any, made by the commissioners of appraisal. All other
claims not exhibited and presented within the time above specified shall
be forever barred.
Section 5-394
§ 5-394 Calendar call after eighteen months; cessation of interest.
Not less than eighteen months after the date of the filing of the oaths
of any original commission appointed pursuant to the provisions of this
subchapter, the corporation counsel may call a session of the commission
appointed and acting as successor to such original commission for the
purpose of having such successor commission fix dates for the hearing
and presentation of any and all claims not theretofore disposed of and
heard; such session shall be known as the calendar call.
At least ten days prior to such calendar call the corporation counsel
shall give personal notice in writing to any or all persons interested
in the proceeding and their attorneys, if any, that such a calendar call
will be held and that dates will be fixed for the hearing and
presentation of claims. All persons so notified may appear at such
calendar call for the purpose of having dates fixed for the hearing and
presentation of their claims. In the event that persons so notified fail
to appear at such calendar call, the commission at the request of the
corporation counsel shall fix dates for the hearing and presentation of
their claims, which dates shall be not less than twenty days after such
calendar call. The corporation counsel shall further notify such persons
in writing of the dates thus fixed, which notice shall be so served not
less than five days before the date so fixed. All persons failing to
appear on the dates fixed by the commission at such calendar call, or
failing to give legal excuse for so failing to appear to the commission
at or before the time of such calendar call, shall forfeit their right
to interest from and after the date fixed by the commission at the
calendar call on any award made to them.
Section 5-395
§ 5-395 Payment by city as termination of liability. Payment of the
compensation awarded by the commissioners of appraisal to the persons
named in their report (if not infants or persons of unsound mind) shall,
in the absence of notice to the city of other claimants to such award,
protect the city.
Section 5-396
§ 5-396 Payment to trust company to the credit of the owner; suit to
determine the rightful owner. Whenever the owner or owners, person or
persons interested in any real estate taken or affected in such
proceedings, or in whose favor any such sum or sums or compensation
shall be so reported shall be under the age of twenty-one years, of
unsound mind, or absent from the state of New York, and also in all
cases where the name or names of the owner or owners, person or persons
interested in any such real estate shall not be set forth or mentioned
in such report, or where the owner or owners, person or persons being
named therein, can not upon diligent inquiry be found, or where there
are adverse or conflicting claims to the moneys awarded as compensation,
it shall be lawful for the city to pay the sum or sums mentioned in such
report, payable, or that would be coming to such owner or owners,
persons or persons respectively, with interest aforesaid, into such
trust company as the court may in the order of confirmation direct, to
the credit of such owner or owners, person or persons, and such payment
shall be as valid and effectual, in all respects as if made to such
owner or owners, person or persons interested therein respectively,
themselves, according to their just rights. In all cases, however, where
any such sum or sums or compensation, reported by the commissioners in
favor of any person or persons or party or parties, whatsoever, whether
named or not named in such report shall be paid to any person or persons
or party or parties, whomsoever, when the same shall of right belong and
ought to have been paid to some other person or persons, or party or
parties, it shall be lawful for the person or persons or party or
parties to whom the same ought to have been paid, to sue for and recover
the same with lawful interest and costs of suit as so much money had and
received to his, her or their use by the person or persons, party or
parties, respectively, to whom the same shall have been so paid.
Section 5-397
§ 5-397 Separate reports by the commissioners. The commissioners of
appraisal may, in their discretion, take up any specified claim or
claims and finally ascertain and determine the compensation to be made
thereon, and make a separate report with reference thereto, annexing to
such report a copy of so much of the maps as displays the parcel or
parcels so reported on. Such report as to the claims therein specified
shall be the report required in this subchapter, and the subsequent
action with reference thereto shall be had in the same manner as though
no other claim were embraced in such proceeding, which, however, shall
continue as to all claims upon which no such determination and report is
made.
Section 5-398
§ 5-398 Unforeseeable damages; settlement or determination thereof.
Whenever the owner of any private property any part of or interest in
which shall have been taken under any proceeding had pursuant to this
subchapter shall claim that the prosecution of any work done pursuant to
such proceeding has been the proximate cause of actual and material
damage to any part of such property and that commissioners of appraisal
could not have taken cognizance of such damage pursuant to section 5-387
of this subchapter, until the actual happening thereof because of its
unforeseeable or speculative nature, the proper person or board
representing the city may agree with such owner as to the amount of such
damages. If such agreement cannot be made, such owner may present to the
commissioners of appraisal his or her claim in writing duly verified on
oath. It shall be the duty of the commissioners to hear allegations and
proofs and to proceed in like manner as is provided in the case of
property taken pursuant to such proceedings as aforesaid and to
determine such actual damages, if any, which were unforeseeable or
speculative until the actual happening thereof. The amount of such
damages so agreed upon, if any, or so determined, shall be payable and
collectible in the same manner as is provided in the case of awards made
through the confirmation of a report of commissioners of appraisal in
such proceedings. In case at the time of making any such claim there
shall be no commissioners authorized to take cognizance thereof, the
corporation counsel, for and on behalf of the city, shall make an
application for the appointment of commissioners of appraisal in the
manner prescribed by this subchapter, to take cognizance of such claims.
Provided, however, that such claims shall be presented in the manner
above specified within two years from and after the completion of the
work, the prosecution of which is claimed to have been the proximate
cause of such damage and that such claim shall be supported by proof of
interest in the property alleged to have been damaged and of such damage
and that it resulted proximately from the prosecution of such work, as
aforesaid, and that it was so unforeseeable or speculative, as
aforesaid; and that the claim could not, with due diligence, have been
presented to prior commissioners of appraisal subsequently to the
happening of the damage. In every case the payment of the amount agreed
upon or determined or adjudged under and pursuant to this section shall
be a continuing, complete, and conclusive bar to all claim of damage by
anyone whomsoever to the property concerned or any part thereof due to
the prosecution of the work.
Section 5-399
§ 5-399 Appeal from the report of the commissioners. Within twenty
days after notice of the confirmation, modification or rejection of the
report of the commissioners, as provided for in section 5-391 of this
subchapter, either party may appeal, by notice in writing to the other
party, to the appellate division of the supreme court, from the order
confirming, modifying or rejecting the report of the commissioners. Such
appeal shall be heard on due notice thereof being given, according to
the rules and practice of such court. On the hearing of such appeal, the
court may affirm, modify or reverse the order of special term or it may
direct a new appraisal and determination of any question passed upon, by
the same or new commissioners, in its discretion, but from any
determination of the appellate division, either party, if aggrieved, may
take an appeal which shall be heard and determined by the court of
appeals. If the amount of compensation to be made by the city is
increased after a new trial, the difference shall be paid by the
comptroller to the parties entitled to the same, or shall be deposited,
as the court may direct; and if the amount is diminished, the difference
shall be refunded to such city by the party to whom the same may have
been paid, the judgment therefor may be rendered by the court, on the
filing of a subsequent decision, against the party liable to pay the
same. But the taking of an appeal by any person or persons shall not
operate to stay the proceedings under this subchapter, except as to the
particular parcel of real estate with which such appeal is concerned.
Such appeal shall be heard upon the evidence taken before such
commissioners, and any affidavits as to irregularities submitted to the
court at special term, and three typewritten copies of such evidence
shall be furnished by the city to the party taking the appeal within ten
days after the appeal is perfected, and such appeals may be heard on the
evidence so furnished, and such appeals may be taken without security
thereon.
Section 5-401
§ 5-401 Powers of the supreme court. The supreme court of the judicial
district in which the real estate, or any part thereof, is situated,
shall have power at any time to amend any defect or informality in any
of the special proceedings authorized by this subchapter as may be
necessary, or to cause other property to be included therein and to
direct such further notice to be given to any party in interest as it
deems proper, and also to appoint other commissioners in place of any
who shall die, or refuse or neglect to serve, or be incapable of serving
or be removed. Such court may at any time remove any of such
commissioners of appraisal who, in its judgment, shall be incapable of
serving or who shall for any reason in its judgment be an unfit person
to serve as such commissioner. The cause of such removal shall be
specified in the order making the same. If, in any particular, it shall,
at any time, be found necessary to amend any pleading or proceeding, or
to supply any defect therein, arising in the course of any special
proceeding authorized by this subchapter, the same may be corrected or
supplied in such manner as may be directed by the supreme court, which
is hereby authorized to make such amendment or correction.
Section 5-402
§ 5-402 Agreements as to compensation. The commissioner of
environmental protection, subject to the approval of the board of
estimate, may agree with the owners and persons interested in any real
estate laid down on such maps as to the amount of compensation to be
paid to such owners or persons interested for the taking or using and
occupying such real estate. In case any such real estate shall be owned,
occupied or enjoyed by the people of this state or by any county, town
or school district within this state, such rights, titles, interests or
properties may be paid for upon agreement respectively with the office
of general services, who shall act for the people of the state, with a
chairman and a majority in numbers of the board of supervisors of any
county who shall act for such county, and with the supervisors and
commissioner of highways, of any town who shall all act for such town,
and with the trustees of any school district who shall act for such
district. The office of general services shall have power to grant to
the city any real estate belonging to the people of this state, which
may be required for the purposes indicated in this subchapter, on such
terms as may be agreed on between it and the commissioner of
environmental protection, always, however, reserving and maintaining the
rights of the people and riparian owners to go to the water at any point
to which the same may be drawn. If any real estate of any county, town
or school district is required by the city for the purposes of this
subchapter the majority of the board of supervisors acting for such
county, or the supervisors of any such town, with the commissioners of
highway therein acting for such town, or the trustees of any school
district acting for such district, may grant or surrender such real
estate for such compensation as may be agreed upon between such officers
respectively and the commissioner of environmental protection.
Section 5-403
§ 5-403 Definitions; special provision concerning acquisition of real
estate used for public purposes. The term real estate as used in this
subchapter shall be construed to signify and embrace all uplands, lands
under water, the waters of any lake, pond or stream, all water rights or
privileges, and any and all easements and incorporated hereditaments and
every estate, interest and right, legal and equitable, in land or water,
including terms for years, and liens thereon by way of judgment,
mortgages or otherwise, and also all claims for damage to such real
estate. It shall also be construed to include all real estate (as the
term is above defined) heretofore or hereafter required or used for
railroad, highway or other public purposes, providing the persons or
corporations owning such real estate or claiming interest therein, shall
be allowed the perpetual use for such purposes of the same or of such
other real estate to be acquired for the purposes of this subchapter as
will afford practicable route or location for such railroad, highway or
other public purpose, and in the case of a railroad, commensurate with
and adapted to its needs; and provided also that such persons or
corporations shall not directly or indirectly be subject to expense,
loss or damage by reason of changing such route or location, but that
such expense, loss or damage shall be borne by the city. In case any
real estate so acquired, or used for public purposes, is sought to be
taken or affected for the purposes of this subchapter there shall be
designated upon the maps referred to in the previous sections of this
subchapter, and there shall be described in the petition, hereinbefore
referred to, such portion of the other real estate shown on such maps
and described in such petition, as it is proposed to substitute in place
of the real estate then used for such railroad, highway or other public
purposes. Provided, that wherever the commissioner of environmental
protection has heretofore located on any map filed in the office of the
commissioners of appraisal, a substituted route for any railroad, the
same shall not be subsequently changed without the assent of such
company. The supreme court at the special term to which the petition is
presented or at such other special term as the consideration thereof may
be adjourned to, shall either approve the substituted route or refer the
same back to the commissioner of environmental protection for alteration
or amendment and may refer the same back, with such directions or
suggestions as such court may deem advisable, and as often as necessary
and until such commissioners shall determine such substituted route as
may be approved by the court. An appeal from any order made by such
court at special term, under the provisions of this section, may be
taken by any person or corporation interested in and aggrieved thereby
to the appellate division and court of appeals, and shall be heard as a
non-enumerated motion. The commissioners of appraisal, hereinbefore
referred to, in determining the compensation to be made to the persons
or corporations owning such real estate, or claiming interest therein,
shall include in the amount of such compensation such sum as shall be
sufficient to defray the expenses of making such change of route and
location and of building such railroad or highway. Such commissioners of
appraisal shall suggest in their report, and the court in the order
confirming such report shall determine, subject to review by the
appellate division, what reasonable time after payment of the awards to
such persons or corporations shall be sufficient within which to
complete the work of making such change. Neither the city, nor the
commissioner of environmental protection shall be entitled to take
possession or interfere with the use of such real estate for the
enumerated purposes, before the expiration of such time. Such time may
be subsequently extended by the court (subject to review as aforesaid)
upon a sufficient cause shown. After the expiration of this time so
determined or extended no use shall be made of such real estate which
shall cause pollution to the water in such reservoir or interfere with
its flow.
Section 5-410
§ 5-410 Compensation, fees, expenses and allowances. The commissioners
of appraisal appointed in pursuance of this subchapter shall receive as
compensation such fees and expenses as may be taxed by the court upon
notice to the corporation counsel who shall also furnish them with the
necessary clerks, stenographers, surveyors and other employees. The
corporation counsel shall, either in person, or by such assistants or
other counsel as he or she shall designate for the purpose, appear for
and protect the interests of the city in all proceedings in court under
this subchapter including the taxation of fees, compensation and
expenses and proceedings before the commissioners. The fees of the
commissioners and the salaries and compensation of their employees, and
their necessary traveling expenses, and all other necessary expenses, in
and about the special proceedings provided by this subchapter to be had
for acquiring title or extinguishing claims for damages to real estate,
and such allowances for counsel fees as may be made by order of the
court shall be paid by the comptroller out of the funds provided
therefor. Such fees and expenses shall not be paid until they have been
taxed before a justice of the supreme court in the judicial district in
which the lands or some part thereof are situated upon eight days'
notice to the corporation counsel. Such allowances shall in no case
exceed the limits prescribed by section eight thousand three hundred
three of the civil practice law and rules. The salaries and compensation
of the persons employed, as provided for in this subchapter, to prepare
the necessary surveys, plans and estimates and for other purposes and to
direct, supervise and inspect the work required to be done under the
provisions of this subchapter, and such other expenses in and about the
same as are not herein required to be under contracts let after
completion, shall be paid by the comptroller on the certification of the
commissioner of environmental protection or of such person or persons as
the commissioner may designate. The compensation and expenses of such of
the corporation counsel's assistants or other counsel as the corporation
counsel may designate to represent and aid the commissioner in the
performance of his or her duties under this subchapter shall also be
paid out of the funds provided therefor, and upon the certificate of the
corporation counsel who shall have power to appoint such assistants or
other counsel, and to fix their compensation. The various sums of money
growing due from time to time, under the terms of the several contracts,
made for the doing of the work and furnishing the material required by
this subchapter, shall be paid by the comptroller on the certification
of the commissioner of environmental protection or such person or
persons as the commissioner may from time to time designate.
Section 5-418
§ 5-418 Where acquired real estate taxable. Real estate acquired under
the provisions of this subchapter shall be taxable in the counties and
taxation districts in which such real estate is situated.
Section 5-423
§ 5-423 Damage to value of real property; businesses, and employees
thereof. a. The owner of any real estate not taken by virtue of this
subchapter and article fifteen of the environmental conservation law or
of any established business on the first day of June, nineteen hundred
five, except as hereinafter provided, and situate in the counties of
Ulster, Albany or Greene, directly or indirectly decreased in value by
reason of the acquiring of land by the city for an additional water
supply or by reason of the execution of any plans for such additional
water supply by the city under the provisions of this subchapter and
article fifteen of the environmental conservation law, his or her heirs,
assigns or personal representatives shall have a right to damages for
such decrease in value. The owner of any real estate not taken by virtue
of this subchapter or of any established business on the first day of
December, nineteen hundred fourteen, except as hereinafter provided,
situate in the counties of Ulster, Greene, Delaware or Schoharie,
directly or indirectly decreased in value by reason of the acquisition,
after the passage of this subchapter of land by the city for an
additional water supply from the Schoharie watershed, or by reason of
the execution of any plans for such additional water supply from such
watershed, under the provisions of this subchapter, his or her assigns
or personal representatives, shall have a right to damages for such
decrease in value. The owner of any real estate, not taken, situate in
any one or more of the counties of Ulster, Delaware, Orange or Sullivan,
or of any established business, directly or indirectly decreased in
value by reason of the execution of any plans for or by the acquisition
of land by the city for a water supply from the Rondout and Delaware
watersheds except that portion of the Delaware watershed of the west
branch of the Delaware river within such counties, or any of them, and
the owner of any real estate, not taken, situate in any one or more of
such counties or situate in the corporate limits of the village of
Deposit in the county of Broome existing on the first day of April,
nineteen hundred fifty-nine, or of any established business, which
business was established on or prior to the first day of April, nineteen
hundred fifty-nine which is directly or indirectly decreased in value by
reason of the execution of any plans for or by the acquistion of land by
the city for a water supply from the watershed of the west branch of the
Delaware river, pursuant to law, his or her or its assigns, or personal
representatives in any such case shall have a right to damages for such
decrease in value, from the time of the beginning of such decrease in
value, provided, however, that in the case of an established business,
the recovery of or award made to any claimant shall not include any
business that may have resulted by reason of the execution of any plans
for such water supply. The commissioner of environmental protection may
agree with such person as to the amount of such damages, and if such
agreement can not be made such damages, if any, shall be determined in
the manner herein provided for the ascertaining and determining the
value of real estate taken under the provisions of this subchapter, and
the commissioners shall not be limited in the reception of evidence to
the rules regulating the proof of direct damages. They may also
recommend such sums, if any, as shall seem to them proper to be allowed
to parties appearing in the proceeding, as expenses and disbursements,
including reasonable compensation for witnesses. The amount of such
damages so agreed upon as aforesaid or determined as aforesaid shall be
payable and collectible in the same manner as is herein provided in the
case of awards made through the confirmation of a report of
commissioners of appraisal.
b. A person employed in a manufacturing establishment, or in an
established business, or upon any lands, and who is not an owner or part
owner thereof or of any interest therein, in the counties of Ulster,
Delaware, Orange and Sullivan, which manufacturing establishment,
established business or lands is injured or destroyed because of the
acquisition by the city of an additional water supply from any watershed
within such counties, except the watershed tributary to the west branch
of the Delaware river, or which lands are taken or acquired for like
purpose by the city and a person who was employed in a manufacturing
establishment or in an established business or upon any lands within
such counties or in the corporate limits of the village of Deposit in
the county of Broome and who is not an owner or part owner thereof or of
any interest therein, which manufacturing establishment or established
business or lands is injured or destroyed because of an acquisition by
the city of an additional water supply from the watershed of the west
branch of the Delaware river, or which lands are taken or acquired for
like purpose by the city, and who in any such case has been so employed
continuously for six months prior to, and who continues in such
employment up to the time of such injury, destruction, taking or
acquisition, shall have a claim for damages against the city equal to
the salary paid such employee for the six months immediately preceding
such injury, destruction, taking or acquisition. Such damages may be
determined by agreement with the commissioner of environmental
protection. In case such agreement can not be made such employee may
maintain an action against the city in the supreme court to recover such
damages, not, however, to exceed the sum of wages paid the employee for
the six months preceding such injury, destruction, taking or
acquisition.
Section 5-424
§ 5-424 Certain acts not to be affected. This subchapter shall not be
construed to repeal, affect or modify chapter nine hundred forty-two of
the laws of eighteen hundred ninety-six, nor chapter seven hundred
fifty-two of the laws of nineteen hundred four.
Section 5-426
§ 5-426 Approval of maps and plans by the New York state department of
environmental conservation. The city shall have no power to acquire,
take or condemn lands under this subchapter unless maps and plans
covering the work contemplated by this subchapter shall have been
submitted to and approved by the New York state department of
environmental conservation or any of its predecessors. All amendments or
modification of such maps and plans thereafter made shall be in like
manner submitted to and approved by such department, and when so
approved, shall have the same force and effect as the original plans
filed therewith.
Section 5-429
§ 5-429 Former board of water supply. Any reference to the former
board of water supply occurring in any law, code, contract or document
shall be deemed to refer to and mean the commissioner of environmental
protection.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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