Title 5: Budget; Capital Projects

Chapter 1: Capital Projects and Budget

§ 5-101 Definitions.

As used in this chapter:

1. The term “capital project” shall mean:

   (a) Any physical public betterment or improvement of any preliminary studies and surveys relative thereto, which would be classified as capital expenditures under generally accepted accounting principles for municipalities.

   (b) The acquisition of property of a permanent nature including wharf property.

   (c) The acquisition of any furnishings, machinery, apparatus or equipment for any public betterment or improvement when such betterment or improvement is first constructed or acquired.

   (d) Any public betterment involving either a physical improvement or the acquisition of real property for a physical improvement consisting in, including or affecting:

      (1) streets and parks;

      (2) bridges and tunnels;

      (3) receiving basins, inlets and sewers, including intercepting sewers, plants or structures for the treatment, disposal or filtration of sewage, including grit chambers, sewer tunnels and all necessary accessories thereof;

      (4) the fencing of vacant lots and the filling of sunken lots.

   (e) Any combination of the above.

2. The term “pending” shall mean not yet completed.

§ 5-102 Additional items in report of comptroller.

On or before the first day of September in each year the comptroller shall submit to the mayor, the board of estimate and the council a statement showing the funded debt of the city at the close of business on the preceding thirtieth day of June and a statement setting forth the constitutional debt-incurring power, or debt limit, of the city as of the preceding first day of July.

§ 5-103 Departmental estimates; details.

The departmental estimates of capital projects submitted pursuant to the provisions of section two hundred fourteen of the charter shall clearly distinguish between those that are for new projects and those that are for the continuance of projects already under way. In the case of pending projects, estimates shall be submitted showing the amount required to continue such projects throughout the next fiscal year, the amount required to complete such projects and the amount already appropriated for such projects. Departmental estimates shall also include detailed estimates of new projects which the head of each agency believes should be undertaken within the ensuing fiscal year and the three succeeding fiscal years. Each departmental estimate shall include the estimated maintenance charges of the project when completed.

§ 5-104 Departmental estimates; not submitted on time.

If a departmental estimate is not submitted on such date as the mayor may direct, the director of management and budget shall cause to be prepared such estimate and data necessary to include a detailed estimate of all capital projects pending or which the director believes should be undertaken within the ensuing fiscal year and the three succeeding fiscal years. In no event later than the fifteenth day of January, or such earlier date as the mayor may direct, the director of management and budget will forward copies of such estimate to the secretary of the board of estimate, the council and each community board and borough board.

§ 5-105 Adoption of capital budget not authorization for expenditures.

The adoption of the capital budget shall in no way constitute an authorization to proceed with the expenditure of the funds except as provided in section two hundred twenty-eight of the charter.

§ 5-106 Capital projects; contracts; certification of debt incurring power.

Before any contract for any of the projects authorized within the capital budget shall be approved by the mayor, the comptroller shall certify in writing to the mayor that there is sufficient margin of constitutional debt-incurring power legally to enable the registration of such contract or contracts within such constitutional limitation.

§ 5-107 New York city housing development corporation capital reserve fund.

So long as any notes or bonds of the New York city housing development corporation issued pursuant to article twelve of the private housing finance law shall be outstanding and unpaid, amounts needed for the purpose of restoring the capital reserve fund to the maximum capital reserve fund requirement pursuant to such article are hereby authorized to be paid to the corporation for deposit therein from the sources specified in paragraph e of subdivision one of section six hundred fifty-six of such law; provided, however, that no such amounts are authorized to be paid in notes or bonds of the corporation issued for the purpose of making loans pursuant to article eight of the private housing finance law. However, such payments may be made, notwithstanding the issuance of notes and bonds of the corporation for the purpose of making loans pursuant to article eight of the private housing finance law provided that: (1) the corporation shall have delivered to the council a report describing the site selection criteria, standards for development plans, management program and other safeguards it will impose in making loans pursuant to article eight of the private housing finance law, which said report shall in any event be delivered to the council no later than August eight, nineteen hundred seventy-two; (2) the aggregate amount of loans to be made by the corporation pursuant to article eight of the private housing finance law for any fiscal year of the city shall be set forth in a statement which shall accompany the proposed executive capital budget (but not be considered a part thereof), as submitted to the board of estimate and council pursuant to section two hundred nineteen of the charter, and such aggregate amounts shall be adopted, and may thereafter be amended, in accordance with the procedures set forth in chapter nine of the charter for the adoption and amendment of the capital budget; and (3) the chairperson of the corporation shall certify with respect to each mortgage loan issued pursuant to article eight of the private housing finance law that the estimated revenues from the mortgage property, including subsidies, after rehabilitation will be sufficient in amount to secure repayment of the loan and interest thereon and to pay all of the necessary expenses of the mortgagor relating to such property.

Chapter 2: Sinking Funds

§ 5-201 Collection of income of sinking funds.

The comptroller shall supervise the collection of all moneys due the several sinking funds of the city established prior to July first, nineteen hundred eighty-one, and direct all necessary measures to complete their payment.

§ 5-202 Separate accounts to be kept for the several sinking funds.

The assets and accounts of each of the several sinking funds of the city established prior to July first, nineteen hundred eighty-one shall be kept separate and distinct, and they shall in all respects be administered as independent trusts, with the intent and purpose of preserving inviolate the rights of holders of corporate stock redeemable therefrom.

§ 5-203 Funds and revenues pledged to redemption of city debt.

Between the city and the holders of its corporate stock redeemable from the several sinking funds of the city established prior to July first, nineteen hundred eighty-one there is hereby declared to be a contract that the funds and revenues of the city, raised pursuant to section two hundred seventy-six of the charter and the rapid transit law as amended shall be applied to such sinking funds until all of such debt redeemable therefrom is fully redeemed and paid.

§ 5-204 Cancellation of city obligations held by the several sinking funds.

It shall be lawful for the comptroller in his or her discretion from time to time but not before maturity, to cancel any portion of the indebtedness of the city incurred on or after January first, eighteen hundred ninety-eight, which may be held by him or her in any sinking fund of the city established prior to July first, nineteen hundred eighty-one and which may by law be redeemable from such sinking fund.

§ 5-205 Procedure for investment of sinking fund moneys.

All obligations which shall be purchased by the comptroller with respect to the several sinking funds of the city established prior to July first, nineteen hundred eighty-one shall be transferred to the comptroller, and all transfers thereof shall be made by the comptroller. Obligations of the city which shall be purchased by the comptroller shall not be cancelled by the comptroller until the final redemption of the same, and all interest accruing therefrom shall regularly be paid to the appropriate sinking funds.

§ 5-206 Duties when accumulations in sinking funds are insufficient.

Whenever it shall appear to the mayor that the accumulations in any sinking fund of the city established prior to July first, nineteen hundred eighty-one will be insufficient to meet the payment of any corporate stock falling due in the next following fiscal year redeemable therefrom, it shall be the mayor’s duty to include in the annual budget for such year, such an amount to be applied to the payment of such corporate stock as shall be sufficient to meet any such deficiency, and the amount shall be paid into such sinking fund.

§ 5-207 Alteration of rates prohibited.

It shall be unlawful for the city to make, or cause to be made, any alteration of rates or charges affecting any item or source of the revenues of the several sinking funds established prior to July first, nineteen hundred eighty-one or of the general fund which may tend to a diminution of the receipts from such sources of revenue, or either of them, except that it shall be lawful for the city to exempt places of public worship from the payment of any fee for the construction of vaults under the sidewalk or in front thereof.

Chapter 3: Condemnation Procedures

Subchapter 1: Consolidated Condemnation Procedure

§ 5-301 Definitions.

As used in this subchapter unless otherwise expressly stated, or unless the context or subject matter otherwise requires, the following terms shall mean:

1. “The court”, “the supreme court”: A special term of the supreme court for condemnation proceedings held in the county within the city and within the judicial district in which real property being acquired or some part thereof is situated.
2. “Application to condemn”: An application to the supreme court to have the compensation which should justly be made to the respective owners of the real property proposed to be taken, ascertained and determined by the court without a jury.
3. “Justice”: The justice assigned to hold such court.
4. “Days”: Calendar days exclusive of Sundays and full legal holidays.
5. “Owner”: A person having an estate, interest or easement in the real property being acquired or a lien, charge or encumbrance thereon.
6. “Real property”: Includes all lands and improvements, lands under water, waterfront property, the water of any lake, pond or stream, all easements and hereditaments, corporeal or incorporeal, and every estate, interest and right, legal or equitable, in lands or water, and right, interest, privilege, easement and franchise relating to the same, including terms for years and liens by way of judgment, mortgage or otherwise.
7. “Street”: Includes street, avenue, road, alley, lane, highway, boulevard, concourse, parkway, driveway, culvert, sidewalk, crosswalk, boardwalk and viaduct, and every class of public road, square and place, except marginal streets and wharves.
8. “Capital project proceeding”: A condemnation proceeding pursuant to the provisions of this chapter for capital project purposes, authorized pursuant to the charter.

§ 5-302 Construction.

The provisions of this subchapter shall apply to all capital project proceeding instituted within the city unless the context or subject-matter otherwise requires, but shall not apply to street closing proceedings, except as provided in section 5-459 of the code, nor to proceedings to acquire real property for rapid transit purposes.

§ 5-303 Special provisions in proceedings for drainage of land by means other than sewers.

In proceedings for the acquisition of real property for the drainage of land by means other than sewers, pursuant to an order of the department of health and mental hygiene, the time or times for the giving or publication of notices shall be one-half of that required in this subchapter for other proceedings, provided that any resultant one-half day shall be deemed a whole day. The time for the supreme court to hear objections to the tentative decree in any such drainage proceeding shall be two days.

§ 5-304 Cession to and purchase by the city of the real property being acquired.

1. An owner of real property, which property the city is authorized to acquire, may cede the same to the city upon such terms and conditions, including exemptions from assessments, as the mayor from time to time may prescribe, provided such real property be free from encumbrances inconsistent with the title to be acquired.
2. The mayor shall also have power and is hereby authorized to agree as to the purchase price of any real property selected for acquisition in a capital project proceeding, or any part thereof, and to purchase the same for and on behalf of the city. An option to purchase such real property, granted to the city for a period not to exceed ninety days, shall not be withdrawn or cancelled during the period named therein.
3. When a conveyance of the real property ceded or purchased shall have been approved and accepted, the city shall become vested with title to such real property so conveyed to the same extent and effect as if it had been acquired for the improvement by a proceeding had for that purpose.

§ 5-305 Preparation of maps in capital project proceeding; filing.

1. When a capital project proceeding has been authorized, the agency submitting the departmental estimate shall cause to be prepared five similar surveys, diagrams, maps or plans of the real property being acquired, stating thereon the amount or valuation at which each parcel of real property to be acquired has been assessed for purposes of taxation on the city tax rolls for each of the three years preceding the date of such selection; one of such surveys, diagrams, maps or plans to be filed in the office of such agency, the second to be filed in the office of the corporation counsel, the third to be filed in the office in which instruments affecting real property are required to be recorded in the county in which such real property is situated, the fourth to be filed in the office of the department of citywide administrative services, and the fifth to be filed in the department of design and construction.
2. It shall be lawful for the duly authorized agents of such agency, and all persons acting under its authority and by its direction, and in accordance with the provisions of section four hundred four of the eminent domain procedure law to enter in the daytime into and upon such real property which it shall be necessary so to enter, for the purpose of making such surveys, diagrams, maps or plans, or for the purpose of making such soundings or borings as such agency may deem necessary.

§ 5-306 Lis pendens.

Upon the authorization by the mayor of a capital project proceeding, it shall be the duty of the corporation counsel to file in the office of the clerk of the county where the real property to be acquired or any part thereof is situated, a notice of the pendency of such proceeding, according to the provisions of subdivision (B) of section four hundred two of the eminent domain procedure law.

§ 5-307 Notice of application to condemn.

Upon the filing of the lis pendens in a capital project proceeding, the corporation counsel for and on behalf of the city shall promptly proceed to give notice of the city’s intention to apply to the supreme court for permission to condemn and ascertain damages, as provided in subdivision (B) of section four hundred two of the eminent domain procedure law.

§ 5-308 Application to condemn; contents of petition.

Upon the application to condemn, the corporation counsel shall present to the court a petition signed and verified by him or her, setting forth in addition to other requirements of the eminent domain procedure law, the following:

1. The order of the mayor authorizing the proceeding.
2. The amount of valuation at which each parcel of the real property to be acquired has been assessed for purposes of taxation on the city tax rolls for each of the three years preceding the date of the petition. Such assessed valuation, in case only part of an entire plot in a single ownership is to be acquired, shall be pro-rated according to the area of the part so to be acquired but shall include the valuation of all buildings encroaching upon or within the lines of the proposed improvement.
3. A prayer that the real property described therein be condemned by such court.

§ 5-309 Notice to file claims.

The corporation counsel, after the filing of the order granting the application to condemn, shall proceed in accordance with section four hundred three of the eminent domain procedure law and provide notice to file claims.

§ 5-310 Proof of ownership.

1. The proof of title to the real property to be acquired, where the same is undisputed, together with proof of liens or encumbrances, thereon, shall be submitted by the claimant to the corporation counsel, or to such assistant as the corporation counsel shall designate. The corporation counsel shall serve upon all parties or their attorneys, who have served upon him or her copies of their verified claims, a notice of the time and place at which the corporation counsel will receive such proof of title.
2. Where the title of the claimant is disputed it shall be the duty of the court to determine the ownership of such real property upon the proof submitted to the court during the trial of the proceeding. The court shall also have power to determine all questions of title incident to the trial of the proceeding.

§ 5-311 Examination before trial of party or witness.

A proceeding by the city to acquire title to real property for a public use or purpose by condemnation shall be deemed a special proceeding, in which testimony may be taken by deposition pursuant to the provisions of article thirty-one of the civil practice law and rules and subject to theprovisions of this section. The pendency of such a proceeding shall constitute special circumstances which render it proper that the deposition of any person not an owner be taken pursuant to sections three thousand one hundred one and three thousand one hundred six of the civil practice law and rules. Such deposition may be taken upon any question or issue in the proceeding and for the purpose of obtaining testimony as to any sale or lease as described in subdivision a of section 5-314 of this subchapter at the instance of the city or of any owner or at the direction of the court at any time after the expiration of the date fixed for filing claims. Any owner desiring to obtain testimony by deposition shall give at least five days’ notice or, if service is made through the post office, at least eight days’ notice to the corporation counsel and to all other owners or their attorneys who have duly filed their verified claims. If the corporation counsel shall desire to obtain testimony by deposition he or she shall give like notice to all owners or their attorneys who have duly filed and served on the corporation counsel copies of their verified claims. For the purpose of any such examination before trial brought on by an owner and noticed for and held at any office of the corporation counsel in the borough in which the real property is situated or at such other place as the corporation counsel shall designate, the corporation counsel shall at the expense of the city provide proper stenographic service and shall furnish to the owner bringing on such examination a copy of the typewritten transcript of such examination, duly certified by the officer before whom the same was taken. In all other cases, the party bringing on such examination shall at his or her own cost and expense provide proper stenographic service and shall furnish to the corporation counsel two copies of the typewritten transcript of such examination duly certified by the officer before whom it was taken. The deposition of a witness need not be subscribed by such witness, if such subscription shall be waived by the parties appearing upon the witness’ examination. The corporation counsel, at the office address subscribed by him or her upon the papers in the proceeding, shall from and after the date of his or her receipt thereof keep on file, available for inspection by all parties to the proceeding a certified copy of each deposition in the proceeding.

§ 5-312 Note of issue of the proceeding.

After all parties who have filed verified claims as provided in section 5-309 of this subchapter, have proved their title or have failed to do so after being notified by the corporation counsel of the time and place when and where such proof of title would be received by him or her, the corporation counsel shall serve upon all parties or their attorneys who have appeared in the proceeding a note of issue as provided in section five hundred six of the eminent domain procedure law. The clerk of the court must thereupon enter the proceeding upon the proper calendar according to the date of the entry of the order granting the application to condemn. When the note of issue has been served and filed, the proceeding must remain on the calendar until finally disposed of.

§ 5-313 View by court.

It shall be the duty of the justice trying any such proceeding, to view the real property to be thereby acquired in accordance with section five hundred ten of the eminent domain procedure law. Where title to real property being acquired in a proceeding shall have been vested in the city, and buildings or improvements situated thereon shall have been removed or destroyed by the city or pursuant to its authority prior to the trial of the proceeding, and whereby the justice trying the proceeding is deprived of a view of the buildings or improvements so removed or destroyed, the fact that the justice has not had a view thereof shall not preclude the court from receiving on the trial of the proceeding testimony and evidence, as to the damage sustained by the claimant by reason of the taking thereof, when offered on behalf of either the claimant or the city.

§ 5-314 Trial of proceeding; evidence.

1. Upon the trial, evidence of the price and other terms upon any sale, or of the rent reserved and other terms upon any lease, relating to any of the property taken or to be taken or to any other property in the vicinity thereof, shall be relevant, material and competent, upon the issue of value or damage and shall be admissible on direct examination if the court shall find the following:

   1. That such sale or lease was made within a reasonable time of the vesting of title in the city,

   2. That it was freely made in good faith in ordinary course of business, and

   3. In case such sale or lease relates to other than property taken, that it relates to property which is similar to the property taken or to be taken. No such evidence, however, shall be admissible as to any sale or lease, which shall not have been the subject of an examination before trial either at the instance of the city or of an owner, unless at least twenty days before the trial the attorney for the party proposing to offer such evidence shall have served a written notice in respect of such sale or lease, which notice shall specify the names and addresses of the parties to the sale or lease, the date of making the same, the location of the premises, the office, liber and page of the record of the same, if recorded, and the purchase price or rent reserved and other material terms, or unless such sale or lease shall have occurred within twenty days before the trial. Such notice by the corporation counsel shall be served upon all owners or their attorneys who have appeared in the proceeding; or if served on behalf of an owner, shall be served upon the corporation counsel and upon all other owners or their attorneys who have appeared in the proceeding. The testimony of a witness as to his or her opinion or estimate of value or damage shall be incompetent, if it shall appear that such opinion or estimate is based upon a sale or lease of any of the property taken or to be taken or of any of the property in the vicinity thereof, which shall not have been the subject of an examination before trial, unless it shall have been specified in a notice served as aforesaid or shall have occurred within twenty days before the trial.

2. Upon the trial, no map or plan of proposed streets, drains or sewers for the subdivision and improvement of any property, nor any drawing or other specification of excavation or filling or piling or of any proposed structure above or under ground deemed necessary or proper to provide a foundation for a suitable or adequate improvement, or of any other structure or improvement not existing on the property on the date that title thereto may vest in the city, nor any oral or written estimate or cost or expense of constructing the streets, drains or sewers in conformity with such map or plan, nor any oral or written estimate of the cost of making such excavation or filling or piling or of constructing any such other proposed structure or improvement in conformity with such drawing or other specification thereof, nor any evidence of value of damage based upon any of the foregoing, shall be received in evidence, unless the party offering the same in evidence shall have served upon the adverse party, at least thirty days prior to the trial, a notice of intention to offer such evidence on the trial and of the particulars thereof, including a true copy of the map or plan or drawing and other specifications and estimate of cost or expense to be so offered in evidence, provided, however, that when offered such evidence shall be subject to objection upon any legal ground.
3. Upon the trial, no evidence shall be admitted, as against an owner of real property being acquired, of an offer made by or on behalf of such owner for the sale of his or her property or any part thereof to the city, or for the sale or assignment of any right and title to the award or awards, or any part thereof, to be made for such property or any part thereof, in the proceeding; nor shall any evidence be received, as against the city, of any offer made to such owner, by or on its behalf, for the purchase of such property or any part thereof or for the purchase of the award or awards or any part thereof, to be made for such property, or any part thereof, in the proceeding.

§ 5-315 Maps to be supplied court.

1. The agency submitting the departmental estimate for a capital project shall furnish to the court such surveys, diagrams, maps and plans as the court shall require, to enable the court to hear and determine the claims of the owners of the real property affected by the proceeding. Such surveys, diagrams, maps and plans shall distinctly indicate by separate numbers, the names of the claimants to, or of the owners of the respective parcels of real property to be taken in such proceedings, so far as the same are known, and shall also specify in figures with sufficient accuracy the dimensions and bounds of each of such tracts to be taken. The court may require any agency of the city, if the corporation counsel shall approve, to furnish such other surveys, diagrams, maps and plans and such other information as shall aid and assist the court in the trial or determination of the proceeding.
2. It shall be lawful for the duly authorized agents of the agency furnishing such surveys, diagrams, maps and plans, and all persons acting under their or its authority and by their or its direction, to enter in the daytime into and upon such real property which it shall be neces- sary so to enter, for the purpose of making such surveys, diagrams and maps or plans as such agency shall deem necessary.

§ 5-316 Clerks to be furnished the court.

The corporation counsel and the comptroller, in a capital project proceeding, shall furnish the court such necessary clerks and other employees and shall provide such suitable offices for such clerks and employees as may be required to enable the court to fully and satisfactorily discharge the duties imposed by law.

§ 5-317 Tentative decree; what to contain; where filed.

1. The court, after hearing such testimony and considering such proofs as may be offered, shall ascertain and estimate the compensation which should justly be made by the city to the respective owners of the real property being acquired. The court shall instruct the corporation counsel to prepare separate tabular abstracts of its estimate of damage.
2. The tabular abstract of the estimated damage shall set forth separately the amount of loss and damage, the names of the respective owners of each and every parcel of real property affected thereby as far as the same shall be ascertained, and a sufficient designation or description of the respective lots or parcels of real property acquired, by reference to the numbers of the respective parcels indicated upon the surveys, diagrams, maps or plans used by the court, or copies thereof, which, together with all of the affidavits and proofs upon which such estimates are based, shall accompany or be attached to such tabular abstracts.
3. The finance department shall furnish to the corporation counsel sets of the tax maps of the city in duplicate for filing therein and for convenience of reference thereto in the tabular abstract of estimated damage. The surveyor of the finance department shall make and furnish all necessary surveys and corrections of the section maps, necessary to keep the maps furnished to the corporation counsel as accurate as practicable.
4. Such tabular abstract or abstracts shall be signed by the justice trying the proceeding and filed with the clerk of the court in the county in which the order granting the application to condemn was filed and when so filed such abstract or abstracts shall constitute the tentative decree of the court as to awards for damages.

§ 5-318 Agreements for compensation to be awarded for the removal of structures from premises being acquired.

1. The mayor, prior to the purchase of the premises being acquired, upon which buildings or parts of buildings or other structures are erected, or prior to the signing of the final decree of the court, may agree with the owner or owners thereof, or any person having a beneficial interest therein, in case title thereto has not vested in the city:

   1. As to the cost and compensation to be allowed and paid to them to remove such buildings or parts of buildings or other structures, and

   2. That such sum or sums shall be the compensation to be awarded by the court, or allowed for the damage done such buildings or parts of buildings or other structures by virtue of such proceeding. Such agreement may also be made as a condition of the sale by the city, at private sale, of its interest in such buildings or parts of buildings or other structures, after vesting of title thereto, to the owner or owners of the award or awards therefor or other persons having an interest therein.

2. Such buildings or parts of buildings or other structures shall not, in any case, be relocated or re-erected within the lines of any proposed street or other public improvement. The mayor shall prescribe such conditions in the terms of sale, which, if broken, shall entitle the city to a resale of such property and which shall revest title thereto in the city.
3. The court shall accept such agreed amounts of compensation for the removal of buildings or parts of buildings or other structures as the amounts to be awarded as such compensation and include the same in the tentative and final decrees.

§ 5-319 Separate and partial tentative and final decrees.

1. The court upon the authorization of the mayor, may make a separate and partial tentative decree and a separate and partial final decree embracing the entire real property being acquired therein, or successive sections or parcels thereof.
2. Whenever a separate and partial tentative and final decree or decrees shall have been authorized, the corporation counsel may file in the office of the county clerk and in the office in which instruments affecting real property are required to be recorded in the county in which the order granting the application to condemn is filed, a survey or map showing the part of the real property being acquired as to which a separate and partial tentative and final decree has been authorized, subdivided into parcels corresponding with separate ownerships thereof, as far as ascertained, and the corporation counsel and the court shall proceed with the ascertainment and determination of the damages with relation to the real property shown on such partial damage map in the same manner as provided for the ascertainment and determination of damages with relation to the entire real property embraced in the proceeding.
3. In case a separate and partial final decree or decrees as to damage, including part of the real property being acquired in the proceeding, shall have been made or filed therein and the justice who made and filed the separate and partial final decree or decrees as to damage shall have died or retired from the bench, or become incapacitated for any reason, the corporation counsel and the court shall proceed with the ascertainment and determination of damage with relation to the remaining real property damaged in the same manner as provided for the ascertainment and determination of damage with relation to the entire real property being acquired and shall make a separate and partial tentative and final decree as to damage as to all the real property being acquired in the proceeding, which shall not have been included in prior separate and partial final decrees as to damage. All provisions of this subchapter relating to tentative and final decrees shall apply to the separate and partial final decrees as to damage so made, provided, however, that the provision making it the duty of the justice to view the property being acquired shall not apply in case the buildings or improvements on the property or the part thereof being acquired shall have been removed or destroyed by the city or pursuant to its authority prior to the time the matter shall have been assigned to such justice for trial.

§ 5-320 Notice to file objections; objections; hearings.

1. Upon the filing of the tentative decree the corporation counsel shall give notice, by advertisement in the City Record, of the filing of such tentative decree and that the city and all other parties interested in such proceedings, or in any of the real property affected thereby, having an objection thereto, shall file such objections, in writing, duly verified in the manner required by law for the verification of pleadings in an action, setting forth the real property owned by the objector, and such objector’s post office address, in the office in which the tentative decree was filed within fifteen days after such publication in a capital project proceeding. Such notice shall be so published for a period of ten days in a captial project proceeding. Similar notice shall be given of the filing of any new, supplemental or amended tentative decree, and for the filing of objections thereto. The notice shall further state that the corporation counsel on a date specified in the notice will apply to the justice who made the tentative decree to fix a time when he or she will hear the parties objecting thereto.
2. After the filing of the tentative decree or of any new, or supplemental, or amended tentative decree, no award for damages shall be diminished without notice to the owner of the real property affected or the owner’s attorney appearing in the proceeding and an opportunity given for a hearing in regard thereto before signing the final decree.
3. Every party objecting to the tentative decree or to the new supplemental or amended tentative decree or such party’s attorney, within the time specified in the notice to file objections, shall serve on the corporation counsel a copy of such verified objections.
4. Upon the application of the corporation counsel, the justice shall fix the time when he or she will hear the parties so objecting and desiring to be heard. At the time so fixed the justice shall hear the person or persons who have objected to the tentative decree, or to the new, supplemental or amended tentative decree, and who may then and there appear, and shall have the power to adjourn from time to time until all parties who have filed objections and who desire to be heard shall have been fully heard.

§ 5-321 Final decree; preparation thereof; what to contain.

1. After considering the objections, if any, and making any corrections or alterations in the tentative decree as to awards for damage, the justice trying the proceeding shall give instructions to the corporation counsel as to the preparation of the final decree. Such decree shall consist of the tentative decree, altered and corrected in accordance with the instructions of the justice; of the final awards, as determined by the court, set opposite the respective damage parcel numbers in a column headed “final award” in the tabular abstract of awards for damage; of a statement of the facts conferring upon the court jurisdiction of the proceeding; and of such other matters as the court shall require to be set forth. The final decree shall also contain a statement that the amounts set opposite the respective damage parcel numbers in the column headed “final awards” in the tabular abstract of awards for damage constitute and are the just compensation which the respective owners are entitled to receive from the city. The final decree shall also set forth the names of the respective owners of the several parcels acquired, but in all cases where the owners are unknown or not fully known to the court, it shall be sufficient to set forth and state in general terms in the decree the respective sums to be allowed and paid to the owners of the respective parcels for loss and damage without specifying their names or their estates or interests therein, and in such case the owners may be specified as unknown.
2. To the final decree shall be attached the surveys, diagrams, maps or plans referred to in subdivision a of section 5-315 of this subchapter, duly corrected, when necessary. Such decree shall set forth the several parcels taken by reference to the numbers of such parcels on the respective surveys, diagrams, maps or plans, and it shall not be necessary to describe any parcels acquired by metes and bounds.
3. Should any errors exist in the tentative decree, or in the surveys, diagrams, maps or plans attached thereto, or should there occur, between the date of the tentative decree and the time of the signing by the court of the final decree, any changes in ownership resulting in changes in the size of area, by subdivision or otherwise, of any of the parcels of any real property to be acquired, the court may alter and correct the respective surveys, diagrams, maps or plans to show such changes in such final decree. At the time of the entry of the final decree, the court shall direct that the maps furnished to the corporation counsel in the proceeding shall be revised and altered in agreement with the tax maps as of the date of the entry of such decree.

§ 5-322 Filing of final decree as to damage where objections and the filing of a tentative decree are waived.

1. Notwithstanding any other provision of this subchapter, in any case where the owner of any real property affected by any proceeding under this subchapter or the owner’s attorney and the corporation counsel enter into an agreement in writing whereby it is agreed that with respect to the award of damages in relation to such property, the filing of a tentative decree, the giving of notice to file objections and the filing and hearing of objections are waived, the filing of a tentative decree, the giving of such notice and the hearing of objections in relation to such award shall not be required.
2. In a capital project proceeding, the court may make a separate and partial final decree or decrees determining the final awards to any owners of real property affected by the proceeding who have entered into such waiver agreements or in whose behalf such agreements have been made by their attorneys, or where such agreements have been so entered into by or in behalf of all owners of real property affected by such proceeding, the court may make a final decree determining the final awards to such owners. In accordance with the procedure regularly governing where the provisions of subdivision a of this section are not applicable, the court may make such separate and partial tentative or final or other decrees as may be appropriate for the determination of awards to owners of real property affected by the proceeding who have not entered into such agreements and in whose behalf such agreements have not been made by their attorneys.
3. 1. Any separate and partial final decree or final decree determining final awards to owners of real property by whom or in whose behalf such waiver agreements have been so entered into shall be prepared by the corporation counsel in accordance with the instructions of the justice trying the proceeding, and shall set forth the following:

      (a) such awards, as determined by the court, set opposite the respective damage parcel numbers;

      (b) the facts conferring jurisdiction over the proceeding upon the court and such other matters as the court shall require to be included;

      (c) a statement that the amounts set opposite the respective damage parcel numbers constitute and are just compensation which the respective owners are entitled to receive from the city; and

      (d) the names of the respective owners of the several parcels acquired, as far as the same shall have been ascertained, but in all cases where the owners are unknown or not fully known to the court, it shall be sufficient to set forth and state in general terms in the decree the respective sums to be allowed and paid to the owners of the respective parcels for loss and damage, without specifying their names or their estates or interests therein, and in such case the owners may be specified as unknown.

   2. If any such decree is the first separate and partial final decree or final decree filed in such proceeding, there shall be attached thereto the surveys, diagrams, maps or plans referred to in subdivision a of section 5-315 of this subchapter, duly corrected, when necessary. Any such decree referred to in this subdivision shall set forth the several parcels taken by reference to the numbers of such parcels on the respective surveys, diagrams, maps, or plans, and it shall not be necessary to describe any parcels acquired by metes and bounds.

§ 5-323 Final decree; how filed; effect.

1. The final decree, together with all affidavits and proofs upon which the same is based, shall be filed in the office of the clerk of the county in which the order granting the application to condemn was filed, and a certified copy of such decree shall be filed in the office in which instruments affecting real property are required to be recorded, in every county in which any part of the real property affected is situated and shall be filed in the department of citywide administrative services of the city of New York.
2. The final decree, unless set aside or reversed on appeal, shall be final and conclusive as well upon the city as upon the owners of the real property mentioned therein, and also upon all other persons whomsoever.

§ 5-324 Appeal to appellate division.

The city or any party or person affected by the proceeding and aggrieved by the final decree of the court therein as to awards may appeal to the appellate division of the court. An appeal from the final decree of the court must be taken within thirty days after notice of the filing of such final decree. Except as herein otherwise provided, such appeal shall be taken and heard in the manner provided by the civil practice law and rules and the rules and practice of the court in relation to appeals from orders in special proceedings, and such appeal shall be heard and determined by such appellate division upon the merits both as to matters of law and fact. The determination of the appellate division shall be in the form of an order. 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 property with which the appeal is concerned. The final decree of the court shall be deemed to be final and conclusive upon all parties and persons affected thereby, who have not appealed. Such appeal shall be heard upon the evidence taken by the court or such part or portion thereof as the justice who made the decree may certify, or the parties to such appeal may agree upon as sufficient to present the merits of the questions in respect to which such appeal shall be had. An appeal taken but not prosecuted within six months after the filing of the notice of appeal, unless the time within which to prosecute the same shall have been extended by an order of the court, shall be deemed to have been abandoned and no agreement between the parties extending the time within which such appeal may be prosecuted shall vary the provisions hereof. When a final decree of the court shall be reversed on appeal, such reversal shall not divest the city of title to the real property affected by the appeal.

§ 5-325 Appeal to court of appeals.

An appeal to the court of appeals may be taken by the city or any person or party interested in the proceeding and aggrieved by the order of the appellate division. Such appeal shall be taken and heard in the manner provided by the civil practice law and rules and the rules and practice of the court of appeals in relation to appeals from orders in special proceedings. An appeal taken but not prosecuted within six months after the filing of the notice of appeal, unless the time within which to prosecute the same shall have been extended by an order of the court, shall be deemed to be abandoned, and no agreement between the parties to the appeal extending the time to prosecute the same shall vary the provisions hereof. The court of appeals may affirm or reverse the order appealed from, and may make such order or direction as shall be appropriate to the case. If the final decree or decrees of the court shall be reversed by the court of appeals, such reversal shall not divest the city of title to the real property affected by the appeal.

§ 5-326 Taxation of costs, charges and expenses.

1. The bill of the reasonable and necessary costs, charges and expenses which by law are required to be taxed shall not be paid or allowed until they shall have been taxed by the court after notice given as in this section provided. Upon such taxation, due proof of the nature and extent of the services rendered and the disbursements charged shall be furnished, and no unnecessary costs or charges shall be allowed. All items in the bill shall be stated in detail and shall be accompanied by such proof of the reasonableness thereof and the necessity therefor, as is now required by law and the practice of the court upon taxation of costs and disbursements in other special proceedings or actions in such court. Proof by affidavit shall also be given of the dates of rendering services. No such claim for compensation, in a capital project proceeding, shall be allowed or paid unless it be accompanied by a certificate of the comptroller setting forth that the same has been audited and examined, and further certifying the result of such audit and examination. Such certificate shall be presumptive evidence of the correctness, reasonableness and necessity of such bill.
2. In a capital project proceeding, the corporation counsel shall be given five days’ notice of the taxation of the bill of costs, charges and expenses.
3. Property owners appearing in the proceedings shall not be entitled to recover counsel fees, costs, disbursements or allowances, except as provided in sections seven hundred one and seven hundred two of the eminent domain procedure law.

§ 5-327 Damages; when, how and to whom paid.

1. All damages awarded by the court, with interest thereon from the date title to the real property acquired shall have vested in the city and all costs, charges and expenses which may have been taxed shall be paid by the city to the respective owners mentioned or referred to in the final decree or to the persons in whose favor such costs, charges and expenses were taxed, as hereinafter provided.
2. In a capital project proceeding, payment shall be made within two calendar months after the entry of the final decree. In default of such payment, the owners or other persons entitled to be paid in the proceeding may at any time after application first made to the comptroller therefor, sue for and recover the amount due, with lawful interest, and the costs of such suit. Upon the application to the comptroller for payment, the applicant may state that any outstanding taxes, assessments or other liens may be deducted from the amount otherwise payable, and in that event, the fact that there are outstanding taxes, assessments or other liens shall not impair or invalidate such application nor operate as a bar to the collection of interest upon the amount awarded less the amount of such outstanding taxes, assessments or other liens.
3. Payment of an award to a person named in the final decree as the owner thereof, if not under legal disability, shall in the absence of notice in writing to the comptroller of adverse claims thereto, protect the city.
4. Where an award shall be paid to a person not entitled thereto, the person to whom it ought to have been paid may sue for and recover such award, with lawful interest and costs of suit, as so much money had and received to his or her use by the person to whom the same shall have been paid.
5. 1. When an owner in whose favor an award shall have been made in a final decree, shall be under legal disability or absent from the city, and when the name of the owner shall not be set forth or mentioned in the final decree or when the owner, although named in such decree, cannot, upon diligent inquiry, be found, or where there are adverse or conflicting claims to the money awarded as compensation, the city shall pay such award into the supreme court, to be secured, disposed of, invested or paid out as such court shall direct, and such payment shall be as valid and effectual in all respects as if made to the owner or other person entitled thereto.

   2. In default of such payment into court, the city shall be and remain liable for such award, with lawful interest thereon from the date upon which title to the real property for which said award was made vested in the city, in a capital project proceeding.

§ 5-328 Advance payments.

The mayor may authorize the comptroller to pay to the person entitled to an award for real property acquired in a proceeding, in advance of the final determination of such person’s damages pursuant to the requirements of article three of the eminent domain procedure law, a sum to be determined by the corporation counsel, after an appraisal of the damages sustained by such person by the expert or experts employed by the corporation counsel less any liens or encumbrances of record upon such property, which amount shall be certified to the comptroller by the corporation counsel. The mayor shall authorize the comptroller to cause to be published in the City Record for ten consecutive days a notice stating that the comptroller is ready to pay such persons entitled to awards for real property acquired in such proceed-ing, in advance of the final determination of their damage. Such notice shall describe the property for which such advance payment may be made by tax block and lot numbers or the damage parcel numbers of the real property involved. Before any such advance payment shall be made, the comptroller shall procure the certificate of the corporation counsel showing the amount to be paid to the claimant, that said amount does represent one hundred percent of the city’s appraised valuation and that the person to whom payment is to be made is the person legally entitled to receive the same. In case the person entitled to an award at the date of the vesting of title to the real property in the city shall have transferred or assigned his or her claim, such transfer or assignment made by such person, or by his or her successor in interest or legal representative, shall not become binding upon the city unless the instrument or instruments evidencing such transfer or assignment shall have been executed and filed in the office of the comptroller prior to any such advance payment. When any such advance payment shall have been made, the comptroller, on paying the awards made for the real property acquired, shall deduct from the total amount allowed as compensation the sum advanced plus interest thereon from the date of the payment of such advance to the date of the final decree and the balance shall be paid as provided in section 5-327 of this subchapter.

§ 5-329 Purchase of awards by the city.

1. In any proceedings instituted pursuant to any of the provisions of this subchapter, or pursuant to the provisions of any other statute providing for the acquisition of title to real property by the city, in which title thereto shall have become vested in such city prior to the entry of the final decree of the court, the mayor shall have power and is hereby authorized to purchase or to approve the purchase on behalf of the city from the individuals or corporations who were the owners of such real property at the date of the vesting of title thereto, or their successors in interest or legal representatives, their right and title to the award or awards, or any part thereof, to be made in such proceeding and to take an assignment thereof to the city. If such owner or owners or their successors in interest or legal representatives shall have transferred or assigned such claim, such transfer or assignment made by such owner or owners or by their successors in interest or legal representatives shall not become binding upon the city unless the instrument or instruments evidencing such transfer or assignment shall have been executed and filed in the office of the comptroller as provided in section 5-330 of this subchapter, prior to the completion of such purchase by the city.
2. An option granted to the city to purchase such award or awards for a period not to exceed six months shall not be withdrawn or cancelled during the period named therein.

§ 5-330 Instruments assigning or pledging awards.

In case of the pledge, sale, transfer or assignment of an award by the person entitled to receive the same by virtue of the final decree of the court, or by other order of the court, the instrument evidencing such pledge, sale, transfer or assignment, acknowledged or proved as instruments are required to be acknowledged or proved for the recording of transfers of real property, shall be filed in the office of the comptroller, who shall endorse on such instrument its number and the hour, day, month and year of its receipt. If an assignment of an award be contained in an instrument recorded in an office in which instruments affecting real property are by law required to be recorded, a certified copy thereof may be filed in the office of the comptroller in place of the original. An alphabetical index shall be kept under the names of the pledgor or assignor, and of the pledgee or assignee, stating the title of the proceeding, the time of the filing of the instrument, the file number thereof, and what part of the award is assigned thereby. A memorandum of the file number of the instrument shall be made by the comptroller on the duplicate decree of the court opposite the place where the amount of the award so assigned is set forth. Every such instrument not so filed shall be void as against any subsequent pledgee or assignee in good faith and for a valuable consideration from the same pledgor or assignor, his or her heirs, administrators or assigns, of the same award or any portion thereof, the assignment of which is first duly filed in the office of the comptroller. Payment to the assignee or pledgee shown to be entitled to the award by such record in the office of the comptroller shall protect the city from liability to any other person or persons.

§ 5-331 Correction of defects.

The court at any time may correct any defect or informality in any notice, petition, pleading, order or decree in the proceeding, or cause real property affected by such defect, informality or lack of jurisdiction to be excluded therefrom, or other real property affected by such defect, informality or lack of jurisdiction to be included therein by amendment, upon ten days’ notice, published and posted as provided for the institution of the proceeding, and may direct such further notices to be given to any party in interest as it shall deem proper.

§ 5-332 Order to expedite proceeding.

At any time after the date of entry of the order granting the application to condemn, the corporation counsel, or any owner may apply to the court for an order directing any owner or owners, or the corporation counsel, as the case may be, to show cause why further proceedings under this subchapter on the part of such owner or owners or of the corporation counsel should not be expedited. Upon the hearing directed by such order to show cause, the court in its discretion may make an order directing that such proceedings be expedited in the manner stated therein and also making such further directions with respect to the particulars shown upon the application as shall be just and proper in the premises.

§ 5-333 Discontinuance of proceedings by the mayor.

The mayor may effect a discontinuance of any proceeding as to the whole or a part of the lands to be acquired in such proceeding, at any time before title to the real property to be thereby acquired shall have vested in the city, and may cause new proceedings to be taken for the condemnation of such real property. In case of such discontinuance, however, the city shall adhere to the provisions of section seven hundred two of the eminent domain procedure law and the reasonable actual cash disbursements, necessarily incurred and made in good faith by any party interested, shall be paid by the city, after the same shall have been taxed by a justice of the supreme court, upon ten days’ notice of such taxation being previously given to the corporation counsel, provided the application to have such disbursements taxed shall be made and presented to the court within one year after the action of the mayor. For the purposes of this section, the fair and reasonable value of the services of an attorney retained by any interested party to represent such party’s interests in said condemnation proceedings, whether on a contingent fee basis or otherwise, if such retainer be made in good faith, shall be deemed to be an actual cash disbursement, necessarily incurred by such interested party and shall be taxable in the same manner as other disbursements. The amounts taxed as disbursements shall be due and payable thirty days after written demand for payment thereof shall have been filed with the comptroller.

§ 5-334 Vesting of title; date of; seizin; possession.*

1. The title to any piece or parcel of the real property authorized to be acquired hereunder for any public improvement or for any public purpose shall be vested in the city upon the entry of the order granting the application to condemn, in a capital project proceeding, in accordance with section four hundred two of the eminent domain procedure law.
2. Upon the date when title to the real property shall have vested as provided in subdivision a of this section, the city, in a capital project proceeding shall become and be seized in fee of or of an easement in, over, upon, or under such real property as the mayor may have determined, the same to be held, appropriated, converted and used for the purposes for which the proceeding was instituted.
3. The city or any person acting under its authority, or the agency which upon the acquisition of title to such real property will have jurisdiction thereof, shall immediately or any time thereafter take possession of such property without suit or other judicial proceedings in accordance with the provisions of the eminent domain procedure law pertaining to possession.

§ 5-335 Vesting of title; effect of, upon real property contracts.

1. Where the whole of any lot or parcel of real property, under lease or other contract, shall be taken, all the covenants, contracts and engagements between landlord and tenant or any other contracting parties touching the same, or any part thereof, upon the vesting of title in the city, shall cease and determine and be absolutely discharged. Where part only of any lot or parcel of real property so under lease or other contract shall be so taken, all contracts and engagements respecting the same, upon such vesting of title, shall cease and determine and be absolutely discharged, as to the part thereof so taken, but shall remain valid and obligatory as to the residue thereof.
2. All persons in possession of such premises at the time of the vesting of title thereto in the city, shall at the option of the city become tenants at will of such city and shall, unless the parties otherwise agree in writing, pay the same rent in effect immediately prior to vesting of title or unless within ten days after the vesting of title they shall elect to vacate and give up their respective holdings.
3. Where a person or persons in possession of the premises at the time of vesting of title thereto are the owners thereof, such person or persons shall at the option of the city become tenants at will of such city, unless within ten days after the vesting of title they shall elect to vacate and give up their holdings. Where such person or persons fail to vacate and give up their holdings, and become tenants at will of the city as herein provided, such person or persons shall pay the reasonable value for the use and occupancy of the premises.
4. Where a person in possession is entitled to an award in such proceeding the rental as provided in subdivision b and the sum fixed for use and occupation as provided in subdivision c herein, during the period between the date of vesting of title in the city and the date of the actual payment of the award, shall be a lien against such award, subject only to liens of record at the time of the vesting of title in the city.

§ 5-336 Rights of certain owners of property condemned for public use.

1. Notwithstanding any general, special or local law to the contrary, where rent is paid for the use of land on which a one or two family dwelling has been constructed, in the event of condemnation for public use a separate award shall be made to the owner of the land and a separate award shall be made to the owner of the dwelling except where there is a written agreement to the contrary.
2. In no event shall the total of the awards, as above, be in excess of what a single award would have been.

§ 5-337 Title acquired for streets and courtyards.

1. The title acquired in real property required for any streets shall be kept in trust, that the same be appropriated and kept open for, or as part of a public street, forever, in like manner as the other streets in the city are and of right ought to be.
2. The mayor, at the time of authorizing the proceedings in which lands are to be acquired for courtyard purposes, may determine whether the fee or an easement shall be acquired in lands required therefor, and the mayor may prescribe such conditions and limitations on the title so to be acquired and as to the temporary or permanent use of the land so to be acquired as he or she may deem proper. The title which the city shall acquire to the lands required for courtyard purposes shall be such as the mayor shall determine. Such title shall be held by the city subject to such limitations and conditions as to title thereto, or as to the use thereof, as the mayor shall prescribe. If not inconsistent with such limitations and conditions as to title or as to the use, land acquired for courtyard purposes may be devoted to general street uses whenever the board of estimate shall determine that the public interest requires such use.
3. The title in fee acquired by the city to real property, except for street and courtyard purposes, shall be a fee simple absolute.

§ 5-338 Title acquired for streets; subject to certain easements.

If any individual or corporation, before the entry of the order granting the application to condemn, has acquired any easement for the purpose of laying or maintaining in the real property to be acquired for street purposes in a proceeding pursuant to this subchapter, underground pipes or conduits for the distribution of water, gas, steam or electricity, or for pneumatic service, such easement shall not be extinguished, but the title to the real property so to be acquired for the purposes authorized shall be taken subject to such easement; provided, however, that nothing herein contained shall be so construed as to limit the power of the city to acquire by purchase or by condemnation proceedings the entire plant or service of such individual or corporation, or to acquire such easement in such street in any other appropriate proceedings.

§ 5-339 Title acquired for streets; subject to rights of railroads.

The city may acquire for street purposes title in fee or to an easement, as may be determined by the mayor to any real property heretofore acquired through purchase or condemnation by any railroad corporation in the boroughs of Brooklyn and Queens for its corporate purposes and which real property lies within the lines of, is adjacent to, adjoins or separates any street or any part or parts thereof, now or hereafter laid out upon the city map, where the state commissioner of transportation certifies that the ownership or exclusive use of such real property or easement thereover is no longer necessary to the carrying out of such corporate purposes. Such title or easement, however, shall be acquired by the city subject to the right of the corporation to continue to use such real property during the term of its corporate existence and for its corporate purposes, or in lieu thereof to use for a like term and like purposes such other portion of the streets within which such real property shall lie, as the public service commission shall designate.

§ 5-340 Title acquired for intercepting sewer purposes; over railroad lands.

Notwithstanding any provisions of the railroad law or of any other statute, general or special, the city is hereby authorized and empowered to acquire title in fee or to a permanent or temporary easement, as may be determined by the mayor, in, under, through, over and across the lands of any railroad company, in any borough of the city, necessary to construct and maintain an intercepting sewer and the appurtenances thereunto appertaining, including grit chambers, in any such borough.

Subchapter 2: Excess Lands Acquisition Procedure

§ 5-341 Definitions.

As used in this subchapter, unless otherwise expressly stated, or unless the context or subject matter otherwise requires, the following terms shall mean:

1. “Improvement”: The laying out, widening, extending or relocating a park, public place, highway or street, or the acquisition of title to real property required for laying out, widening, extending or relocating a park, public place, highway or street.
2. “Excess lands”, or “additional lands”, or “additional real property”: The real property in addition to the real property needed or required for laying out, widening, extending or relocating a park, public place, highway or street.

§ 5-342 Construction.

The provisions of this subchapter shall be construed as supplementing and extending the effect of the provisions of subchapter one of this chapter so as to provide for the acquisition of title to additional lands in connection with an improvement and nothing in this subchapter contained shall be construed as limiting the effect of the provisions of such subchapter one in their application to the acquisition of title to real property required for an improvement when acquired in a proceeding in which additional lands shall or shall not be acquired, except as the provisions of such subchapter one are in this subchapter expressly so limited in their application.

§ 5-343 Power to condemn excess lands.

The city, in acquiring real property for any improvement, may acquire more real property than is needed for the actual construction of the improvement. The mayor may authorize the city to acquire additional real property in connection with any improvement, and direct that the same be acquired with the real property to be acquired for the improvement. Such additional real property, however, shall be not more than sufficient to form suitable building sites abutting on the improvement. The title which the city shall acquire to additional real property shall in every case be a fee simple absolute. Additional real property shall be acquired by the city in connection with a street improvement only when the title acquired for the improvement shall be in fee. When the mayor shall have authorized the acquisition of title to additional real property in connection with an improvement, title to such additional real property shall be acquired by the city in the manner and according to the procedure, except in such respects as in this subchapter set forth, provided for the acquisition of title to the real property required for the improvement and in the same proceeding in which title to the real property required for the improvement shall be acquired; except further that such acquisition shall be made in compliance with the appropriate provisions of the eminent domain procedure law.

§ 5-344 Amendment of improvement proceeding to include or exclude excess lands.

After the institution of a proceeding for an improvement, the mayor may amend the proceeding by authorizing the acquisition of lands additional to those required for the improvement, provided that title shall not have vested in the city to any parcel of real property to be acquired for the improvement within the block, between legally existing public streets, embracing the additional lands sought to be acquired. The mayor may also amend any proceeding so as to exclude any or all additional lands being acquired in the proceeding, provided title to such additional lands shall not have vested in the city. Thereafter the proceeding shall be conducted in the same manner as if the additional lands included or excluded by the amendment had been included or had not been included in the proceeding at the time of the institution thereof.

§ 5-345 Damage maps to be prepared.

When the mayor shall authorize the acquisition of additional real property in connection with any improvement, the mayor shall cause to be prepared and shall approve a map showing the real property to be acquired for the improvement and such additional real property in connection with the real property to be acquired for the improvement, and such map shall be filed, prior to the application to condemn the same, as follows: One copy thereof in the office in which conveyances of real property are required by law to be recorded in each county in which the real property or any part thereof shown on such map is situated; one copy thereof in the office of the corporation counsel; one copy thereof in the office of the president of each borough in which the real property or any part thereof shown on such map is situated; and one copy thereof in the office of the mayor.

§ 5-346 Petition and notice.

When the mayor shall have authorized the acquisition of additional real property in connection with any improvement, such additional real property shall be separately described in the notice of application to condemn by the supreme court and in the petition presented on any such application, and separately shown on the rule map attached to the petition and on the damage map in the proceeding, and such notice and petition shall state what part of the real property to be condemned is required for the improvement, and what part thereof is to be acquired as additional real property. The acquisition of such additional real property, when authorized by the mayor, shall be deemed to be for a public purpose.

§ 5-347 Vesting of title; seizin; possession.*

1. In a proceeding in which additional real property shall be acquired, the mayor shall direct that on the date of entry of the order granting the application to acquire by the supreme court the title to the whole but not less than the whole of such additional real property to be acquired in the proceeding shall vest in the city. Such order shall also direct the vesting in such city, simultaneously, of the title to all of the real property being acquired in the proceeding for the improvement. In a proceeding involving the acquisition of title to additional real property required for a street, highway or public place, however, the mayor shall not be required to vest, at one time, the title to all the additional real property to be acquired, provided that:

   1. In vesting title to parts of such additional real property every such part shall be of at least a block length along the improvement, and no fractional portion of a block shall be contained in any such part, and

   2. The mayor shall also direct that all the real property required for the street, highway or public place in such block or blocks shall vest in the city simultaneously.

2. Upon the date of the entry of the order granting the application to acquire, the city shall be and become seized in fee simple absolute to such additional real property. The reversal on appeal of the final decree, or of any part thereof, shall not operate to divest the city of title to any of the real property so acquired. In a proceeding in which excess lands shall be acquired, the mayor shall not have power to direct the vesting of title in the city to the real property required for the improvement without also directing the vesting of title in the city, simultaneously, to the excess lands being acquired in the proceeding in connection with the improvement, except that the mayor may direct, in the manner provided in subdivision a of this section, that title to the real property required for a street, highway or public place shall vest in the city in any block of such street, highway or public place abutting which no excess lands are taken.
3. In any proceeding in which excess lands shall be acquired, when title to any part less than the whole of the real property required for the street, highway or public place in any one block thereof, between legally existing public streets, shall vest in the city, title to the remainder of the real property required for the street, highway or public place in the same block and title to the additional lands to be acquired in the proceeding abutting on the street, highway or public place in the same block, shall vest in the city simultaneously. The reversal on appeal of the final decree of the court, or of any part thereof, shall not operate to divest the city of title to any of the real property so acquired for the street, highway or public place in the same block or to the additional lands abutting thereon.
4. Upon the vesting of title, as in this section provided, to any such additional lands and to lands required for the improvement, the city, or any person acting under its authority, may immediately, or at any time thereafter, take possession of the additional lands so vested and of the real property required for the improvement so vested, or any part or parts thereof, in accordance with the provisions of the eminent domain procedure law pertaining to possession.

§ 5-348 Ascertainment of damages where part of parcel is taken for an improvement and remainder as excess lands.

1. Where part of a parcel of real property shall be acquired for an improvement, and the remainder or a portion of the remainder of such parcel in the same ownership shall be acquired in the same proceeding as excess lands, the portion of the damages due to the acquisition of the real property required for the improvement shall be determined and stated separately from the entire damage due to each such owner. In determining the damages due to the acquisition of so much of such parcel as may be required for the improvement, the same rule shall be applied as would govern the determination of damages for the taking of the real property required for the improvement in case no excess lands were acquired. Where part of a parcel of real property shall be acquired for the improvement, and the remainder or a portion of the remainder thereof in the same ownership shall be acquired in the same proceeding as excess lands, the damages due to the acquisition of title to the real property required for the improvement, shall, in every case, equal the amount which would be awarded to such owner in case only that part of his or her real property, which shall be required for the improvement, were acquired.
2. Nothing in this section contained shall be construed to authorize the award to an owner, part of whose real property is taken for the improvement, and the remainder or a portion of the remainder of whose property is taken as additional lands, any greater amount of compensation than such owner shall be entiled to by reason of the taking of his or her real property for the improvement and as additional lands, considered together as one parcel.

§ 5-349 Payments of awards and interest.

The provisions of subchapter one of this chapter relative to the payment by the comptroller of sums awarded as damages and interest thereon, and to the advance payment on account of such damages, and relative to the assignment or pledge of awards, shall apply to awards or damages for the taking of additional lands. Interest on the entire amount due to the owner for the real property acquired for the improvement, or for the excess lands, or for both, from the date of the vesting of title thereto to the date of the final decree shall be awarded as a part of such owner’s compensation.

§ 5-350 Sale and lease of acquired excess lands.

1. After title to the real property required for the improvement, and to the additional lands, shall have vested in the city, the additional lands may be either held and used by the city, or sold or leased in the manner provided by the charter as long as consistent with the provisions of section four hundred six of the eminent domain procedure law. The board of estimate may provide that such additional lands shall be sold or leased subject to such restrictions, covenants or conditions as to location of buildings with reference to the real property acquired for the improvement, or the height of buildings or structures, or the character of construction and architecture thereof, or such other covenants, conditions or restrictions as it may deem proper. Such additional lands shall be sold or leased subject to such restrictions, covenants or conditions, if any, as the board of estimate may have prescribed, which shall be set forth in the instrument of conveyance or lease.
2. Nothing in subdivision b of section three hundred eighty-four of the charter limiting the term of leases by the city to a different period shall apply to a lease by the city, acting through the board of estimate, of such additional real property for housing purposes, including stores on the street level.

Subchapter 3: Acquisition of Real Property For Water Supply purposes

§ 5-351 Definitions.

As used in this subchapter unless otherwise expressly stated or unless the context or subject matter otherwise requires, the following terms shall mean and include:

1. “Real Estate”: All uplands, lands under water, the water of any lake, pond or stream, all water rights or privileges, and any and all easements and hereditaments, corporeal or incorporeal, and every estate, interest and right, legal and equitable, in lands or water, or any privilege or easement, thereunder, including terms for years, including all real estate heretofore or hereafter acquired or used for railroad, highway or other public purposes, and liens thereon by way of judgment, mortgage or otherwise, and also all claims for damage to such real estate.
2. “Commissioner”: The commissioner of the department of environmental protection.

§ 5-352 Construction.

1. The provisions of this subchapter shall apply to the acquisition by the city of real estate outside the city for the purposes of water supply.
2. The provisions of section 5-329 of the code shall be construed to apply to this subchapter.
3. Nothing in this subchapter contained shall be deemed to repeal the provisions of chapter nine hundred forty-two of the laws of eighteen hundred ninety-six except where said chapter may be inconsistent with the provisions of the eminent domain procedure law.

§ 5-353 Authority to acquire real estate outside the state of New York.

The city is authorized to acquire by purchase, lease, or otherwise, lands or water in any other state, or rights, interests, or privileges in, to or over any lands or water in any other state for the purpose of supplying water to the city.

§ 5-354 Acquisition of real estate.

In all cases where the commissioner shall hereafter enter upon, acquire, take or use, or shall deem it necessary to enter upon, acquire, take or use, any real estate, for the purpose of maintaining, preserving or increasing the supply of pure and wholesome water for the use of the city, or for the purpose of preventing the contamination or pollution of the same, the commissioner is authorized in behalf, and in the name of the city of New York, pursuant to the provisions of this subchapter, and pursuant to the provisions of the eminent domain procedure law, to acquire all rights, titles and interests in and to such real estate, by whomsoever the same may be held, enjoyed or claimed, and to pay for and extinguish all claims or damages on account of such rights, titles or interests, or growing out of such taking or using.

§ 5-355 Condemnation proceedings.

1. It shall be lawful for the city to acquire by condemnation any real estate or any interest therein that may be necessary in order to acquire the sole and exclusive property in the source or sources of water supply, which may be needed for the supply of the public waterworks of the city, and to wholly extinguish the water rights of any person or corporation therein, with the right to lay, relay, repair and maintain aqueducts, conduits and water pipes with the connections and fixtures on the lands of others, and, if necessary, to acquire by condemnation lands for such purpose in any county or counties through which it may be necessary to pass in conducting such waters to the city. The city shall have the right to intercept and to direct the flow of water from lands of riparian owners, and from persons owning or interested in any water, and the right to prevent the flow or drainage of noxious or impure matters from the lands of others into its reservoirs or sources of supply.
2. The city, however, shall not have power to acquire or to extinguish the property rights of any person or corporation in or to any water rights that at the time of the initiation of proceedings for condemnation are in actual use for the supply of the waterworks of the people of any other city, town or village of the state, or for the supply and distribution of waters to the people thereof, or which in the opinion of the court on such proceedings may reasonably become necessary for such supply, or to take or use the water from any of the canals of the state, any canal reservoirs, or waters used exclusively as feeders for canals, or from any of the streams acquired by the state for supplying the canals with water.
3. The city shall not acquire by condemnation any property or factory in Putnam county which has been used for twenty-five years for the manufacture of food products; nor acquire by condemnation any lands, easements, streams or water, or water rights, on the east branch of the Croton river, below the village of Brewster in the town of Southeast, Putnam county, for the construction of any reservoir, in which water will or may be impounded at a higher level than three hundred and ten feet above tide water at the city.

§ 5-356 Acquisition of real estate used for railroad, highway or other public purpose.

1. The persons or corporations owning real estate, heretofore or hereafter acquired or used for railroad, highway or other public purpose, 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 title as will afford a 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.
2. 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 such expense, loss or damage shall be borne by the city.
3. In case such real estate shall be taken or affected for the purposes of this subchapter, there shall be designated upon the maps referred to in this subchapter, and there shall be described in the petition referred to, such portion of the other real estate shown, on such maps and described in such petition, as it shall be proposed to substitute in place of the real estate then used for such railroad, highway or other public purposes. 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 noticed for, or adjourned to, shall either approve the substituted route or place, or refer the same back to the commissioner for alteration or amendment. The court may refer the same back with such directions, or suggestions as it may deem advisable, and as often as necessary, and until the commissioner shall determine such substituted route or place as may be approved by such court. An appeal from any order made by the 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 of the judicial department in which the real estate is situated, and shall be heard as a nonenumerated motion.
4. A justice of the supreme court before whom the proceedings are brought, 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. The court, subject to review by the appellate division, shall determine what reasonable time after payment of the awards to the persons or corporations entitled thereto shall be sufficient within which to complete the work of making such change. The city or the commissioner shall not be entitled to take possession or interfere with the use of such real estate, for such purposes, before the expiration of such time. That time may subsequently be extended by the court (subject to such review), upon sufficient cause shown. After the expiration of the time so determined or extended, no use shall be made of such real estate which shall cause pollution of the water in any reservoir, or interfere with its flow.

§ 5-357 Maps; preparation and filing of.

1. Whenever, in the opinion of the commissioner, it shall be necessary to acquire any real estate for any of the purposes of this subchapter, or for the purpose of extinguishing any right, title or interest thereto or therein, such commissioner, for and on behalf of the city shall prepare a map or maps of the real estate which in his or her opinion it is necessary to acquire for such purposes, and shall submit the same to the mayor for approval. The mayor may adopt, modify or reject such maps in whole or in part, and may require others to be made instead.
2. A copy of the map or maps so prepared, with a certificate of the adoption thereof, signed by the commissioner and the mayor, shall be filed in the office of such commissioner and be open to public inspection, and shall be the map or maps of the real estate to be acquired, subject to such changes or modifications as the commissioner may from time to time deem necessary for the more efficient carrying out of the provisions of this subchapter.

§ 5-358 Hearing by the mayor.

The mayor, prior to the final adoption of such map or maps, shall afford to all persons interested a full opportunity to be heard respecting such map or maps and the acquisition of the real estate shown thereon, and shall give public notice of such hearing, by publishing a notice, once in each week, for three successive weeks in the City Record, and in two papers published in the county or counties in which the real estate to be acquired or affected is situated, and in two daily papers in the city. At such hearing or hearings, testimony may be produced by the parties appearing before it in such manner as the mayor may determine, and he or she is hereby authorized to administer oaths and issue subpoenas in any such proceeding pending before him or her.

§ 5-359 Entry upon lands to make maps.

The commissioner, his or her agents, engineers, surveyors, and such other persons as may be necessary to enable him or her to perform his or her duties under this subchapter, are hereby authorized, pursuant to section four hundred four of the eminent domain procedure law, to enter upon real estate, and any land or water on or contiguous to the line, course, site or track of any pond, lake, stream, reservoir, dam, aqueduct, culverts, sluices, canals, bridges, tunnels, pumping works, blow-offs, shafts and other appurtenances for the purpose of making surveys or examinations and preparing and posting the notices required by this subchapter.

§ 5-360 Damage maps; preparation and filing of.

1. After the final adoption of such map or maps, the commissioner shall prepare six similar maps or plans of the proposed site of any dam, reservoir, aqueduct, sluice, culvert, canal, pumping works, bridges, tunnels, blow-offs, ventilating shafts, and other necessary appurtenances for the proper completion of the work so proposed by the commissioner. Upon such maps there shall be:

   1. Laid out and numbered the various parcels of real estate, on, over or through which the same are to be constructed and maintained, or which may be necessary for the prosecution of the work authorized by this subchapter.

   2. Delineated the natural and artificial division lines existing on the surface of the soil at the time of the survey.

   3. Plainly indicated thereon, of which parcels the fee or other interest is to be acquired.

2. 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. The proceedings herein 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 map or maps, when adopted by the commissioner and mayor, shall be by such commissioner transmitted to the corporation counsel, with a certificate of approval written thereon and signed by the commissioner and the mayor.
3. The corporation counsel shall cause one of such maps to be filed in the office of the clerk of each county in which any real estate laid out on such maps shall be located, except that in any county in which there may be a register’s office, such map shall be filed therein, instead of with the county clerk. The fourth, fifth and sixth maps shall be disposed of in the manner indicated in section 5-366 of this subchapter.

§ 5-361 Agreements with owners of real estate or other persons.

1. The commissioner, subject to the approval of the mayor, may agree with the owners or persons interested in any real estate laid down on such maps upon 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 New York State office of general services, who shall act for the people of the state, with a chairperson and a majority in numbers of the board of supervisors of any county, who shall act for such county, and with the supervisor and commissioners of highways in any town, who shall act for such town, and with the trustees of any school district, who shall act for such district, and with the president and a majority of the board of trustees of any incorporated village. The New York State 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 them and such commissioners. 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 highways therein, acting for such town, or the trustees of any school district, acting for such district, or the president and majority of trustees of any incorporated village, may grant or surrender such real estate for the compensation agreed upon between such officers respectively and such commissioners.
2. In case any real estate required by the city for the purpose of this subchapter shall be vested in any trustee not authorized to sell, release and convey the same, or in any infant, idiot, or person of unsound mind, the supreme court shall have power, by a summary proceeding, on petition, to authorize and empower such trustee or general guardian or committee of such infant, idiot, or person of unsound mind, to sell, convey, or surrender the same to the city on such terms as may be just. In case any such infant, idiot, or person of unsound mind has no general guardian or committee, the court may appoint a special guardian or committee for the purpose of making such sale, surrender, or conveyance, and may require such security from such general or special guardian or committee as such court may deem proper. Before any conveyance or release authorized by this subchapter shall be executed, the terms on which the same shall be executed shall be reported to the court on oath, and if the court shall be satisfied that such terms are just to the party interested in such rights, titles, interests, or properties, the court shall confirm the report and direct to be executed the proper conveyance or release, which shall have the same effect as if executed by an owner of such rights, titles, interests or properties having legal power to sell, surrender, and convey the same.
3. In case any person owning private property not actually taken or proposed to be taken, pursuant to the provisions of this subchapter, but which will in such person’s opinion be damaged, the commissioner representing the city, with the approval of the mayor, may agree with such person as to the amount of such damages, and if such agreement cannot be made, such damages, if any, shall be determined in the same manner provided for ascertaining and determining the value of real estate taken under such proceedings, and the amount of such damages so agreed upon or so determined shall be payable and collectible in the same manner as is provided in the case of awards made in such proceedings.

§ 5-362 Institution of proceedings.

After such maps shall have been filed, as provided for in section 5-360 of this subchapter, the corporation counsel, upon first giving the notice required in section 5-363 of this subchapter, shall apply, pursuant to section four hundred two of the eminent domain procedure law, to the supreme court, at a special term thereof to be held in the judicial district in which the real estate to be acquired or affected is situated, for an order to acquire such property. Upon such application the corporation counsel shall in addition to the other requirements of section four hundred two of the eminent domain procedure law, present to the court a petition, signed and verified by the commissioner, setting forth the action theretofore taken by such commissioner and the mayor, and the filing of such maps. 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 purposes of this subchapter, each parcel being more particularly described by a reference to the number of such parcel, as given on such map, 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.

§ 5-363 Notice of the proceeding.

1. The corporation counsel in addition to the notice required in section four hundred two of the eminent domain procedure law shall give notice in the City Record, and in two public newspapers published in the city. A statement of the boundaries of the real estate to be acquired or affected, with separate enumerations of the numbers of the parcels to be taken in fee, and of the numbers of the parcels in which any interest or easement is to be acquired, with a reference to the date and place of filing the map or maps shall be sufficient description of the real estate sought to be so taken or affected. The notice in the City Record and public newspapers in the city shall be published and posted in accordance with the applicable provisions on publication and posting contained in subdivision (B) of section four hundred two of the eminent domain procedure law.
2. At the time and place mentioned in such notice, unless the court shall adjourn such application to a subsequent day, and in that event, at the time to which the same may be adjourned, the court, upon due proof to its satisfaction of such publication and posting, and upon filing the petition, shall make an order which shall not only grant the petition, but satisfy the other requirements of paragraph five of subdivision (B) of section four hundred two of the eminent domain procedure law. After satisfaction of the applicable provisions of the eminent domain procedure law, the court shall 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 purposes indicated in this subchapter. There shall be submitted to the same judge, at one time, however, only as many parcels as can reasonably be passed upon and an award made therefor, by the court, within the limits of one year from entry of the order granting the petition.

§ 5-364 Vesting of title; removal of buildings.

1. On entry of the order and filing of the acquisition map, the city shall be and become seized in fee of all those parcels of real estate which are shown on the map hereinbefore referred to made by the commissioner of which it has been determined by the commissioner that the fee shall be acquired, and shall be entitled to take and hold such interest in the parcels of land in which it has been determined that the fee shall not be acquired, as has been shown on such map and described in the petition. The city may upon satisfaction of the requirements of the eminent domain procedure law, take possession of the lands shown on such map, or any part or parts thereof.
2. The buildings or improvements thereon, however, shall not be removed or disturbed within one year from the date of the completion of notice of entry of the order as required by section five hundred two of the eminent domain procedure law unless ten days’ notice is given to the owner or to the owner’s attorney, of the intention to make such removal, and affording the owner an opportunity to examine the property with a justice of the court and such witnesses as the owner may desire. If the owner of the property cannot be found with due diligence, and there is no attorney representing the property or parcel, before removing, disturbing or destroying any of the buildings or improvements, the representatives of the city or the corporation counsel shall cause measurements to be made of the buildings and photographs to be taken of the exterior views thereof, which measurements and photographs shall be at the disposition, thereafter, of the claimant or the claimant’s attorney in case such claimant or attorney shall appear and demand the same before the claim shall have been tried.

§ 5-365 Presentation of claims.

Every owner or person in any way interested in any real estate taken, affected or entered upon or used and occupied for the purposes contemplated by this subchapter, and any owner or person interested in real estate contiguous thereto, and which is affected by the acquisition, use or occupation of the real estate shown on such map, whether such contiguous real estate is shown on the maps or not, if they intend to make claim for compensation for such taking, entering upon, using or occupying, shall, within one year after completion of notice of entry of the order, file a statement of claim, pursuant to section five hundred three of the eminent domain procedure law, and shall thereupon be entitled to offer testimony and to be heard by the court touching such claim and the compensation proper to be made, and to have a determination made by such court as to the amount of such compensation. Every person, corporation, or body politic, neglecting or refusing to present such claim within such time shall be deemed to have surrendered his, her or its title or interest in such real estate or his, her or its claim for damages thereto, except so far as they may be entitled, as such owner or person interested, to the whole or a part of the sum of money awarded by the court as a just compensation for taking, using and occupying, or as damages for affecting the real estate owned by such person, corporation, or body politic.

§ 5-366 Proceedings before the court.

1. It shall be the duty of the corporation counsel to furnish copies of the maps provided for in this subchapter to the court. The court shall view the real estate laid down on such 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.
2. After the testimony is closed, the court shall without unnecessary delay, ascertain and determine the just compensation which should be made by the city to the owners, or to the persons interested in the real estate sought to be acquired or affected by such proceedings.
3. In the ascertainment of the compensation for any property or property rights so acquired, such compensation shall be based upon the actual values of the property or the interest acquired therein at the time of its taking, and there shall not be taken into consideration any prospective or speculative value, based upon the possible, probable or actual future use of such property, or property rights, if the same had not been acquired by the city for public use.
4. The court shall determine:

   1. The height to which the waters of any lake, pond, or natural stream concerning which such proceedings were instituted may be raised and the point to which such waters may be drawn down by the city, such determination to be made before any award of damages shall be made on account of such proposed raising or depression of such waters.

   2. The sum to be paid to the general or special guardian or committee of an infant, idiot or person of unsound mind, and to the attorney appointed by the court to attend to the interests of any unknown owner or party in interest, or to the attorney or guardian of any party in interest whose interests are unknown or the interest of any person or persons not in being.

§ 5-367 Tentative decree.

1. The tentative decree of the court shall generally contain, in addition to one or more maps involved in the proceedings, the following:

   1. A brief description of the several parcels of real estate taken or affected, with a reference to the map as showing the location and boundaries of each parcel.

   2. A statement of the sum estimated and determined upon by the court as a just compensation to be made by the city to the owners of or persons entitled to or interested in each parcel so taken or affected.

   3. A statement of the names of respective owners of or persons entitled thereto or interested therein. In all cases where the owners and parties interested, or their respective estates or interests are unknown, or not fully known to the court, it shall be sufficient for the court to set forth and state, in general terms, the respective sums to be allowed and paid to the owners thereof and parties interested therein generally, without specifying the names or estates or interests of such owners or parties interested or any or either of them. The court shall also recommend such sums as shall seem to the court proper to be allowed to the parties or attorneys appearing before the court, as costs, counsel fees, expenses and disbursements, including reasonable compensation for witnesses as provided in sections seven hundred one and seven hundred two of the eminent domain procedure law.

2. The court, in its discretion, may take up any specified claim or claims, and finally ascertain and determine the compensation to be made thereon, and make a separate finding with reference thereto, annexing to such finding a copy of so much of the maps as displays the parcel or parcels so reported on. Such finding, as to the claims therein specified, shall be the finding required in this subchapter, and the subsequent action with reference thereto shall be had in the same manner as though no other claim was embraced in the proceeding, which, however, shall continue as to all claims upon which no such determination and finding shall have been made.
3. The tentative decree, shall be filed in the office of the clerk of the county in which the real estate shall be situated.

§ 5-368 Tentative decree; notice of motion to confirm; confirmation thereof.

1. The corporation counsel, or in case of his or her neglect to do so within ten days after receiving notice of the filing of the tentative decree, any person interested in the proceedings, shall give notice that such decree will be presented for confirmation to the supreme court, at a time and place to be specified in such notice. The notice shall contain a statement of the time and place of the filing of the decree, and shall be published in each of the newspapers referred to in section 5-358 of this subchapter, once in each week, for at least four weeks immediately prior to the presentation of such decree for confirmation.
2. Upon the hearing of the application for the confirmation thereof, such court shall confirm such decree in whole or in part after hearing any objections thereto and amending the same if proof presented justifies such amendments. As to the whole or any portion of the decree confirmed, the court shall 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 shall be made. The court shall also direct to whom the money shall be paid, or in which trust company it shall be deposited by the comptroller. Such decree when so confirmed, except in the case of an appeal, as provided in section 5-369 of this subchapter, shall be final and conclusive as well upon the city as upon the owners and all persons interested in or entitled to such real estate, and also upon all other persons whomsoever.

§ 5-369 Appeals.

Within twenty days after the making, entry and service of the final decree, either party may appeal by notice, in writing, to the appellate division of the supreme court of the judicial department in which the real estate described in the petition and shown on the map is situated. Such appeal shall be heard, on due notice thereof being given, according to the rules and practice of such court, and pending such appeal the comptroller shall deposit in such trust company as the court shall direct, the amount of the award, with interest to the date of such deposit and the funds so deposited shall remain with the trust company, subject to the further order of the court. On the hearing of such appeal the court may direct a new trial by the supreme court and either party if aggrieved, may take a further appeal, which shall be heard and determined by the court of appeals. If the amount of compensation to be made by the city shall be increased at the second 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 shall be diminished, the difference shall be refunded to the city by the trust company. The taking of an appeal by any person or persons, however, shall not operate to stay the proceedings under this subchapter, providing such award and interest have been deposited.

§ 5-370 Awards; payment of.

The comptroller, within four calendar months after the making and entry of the final decree, shall pay to the respective owners and bodies, politic or corporate, mentioned or referred to in such decree, in whose favor any sum or sums of money shall be determined, the respective sum or sums so determined in their favor respectively, with lawful interest thereon, from the date title to the real property vested. In case of neglect or default in the payment of the same within such time, the respective person or persons, or bodies, politic or corporate, in whose favor the same shall be so determined, his, her or their executors, administrators, legal representatives 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 such lawful interest and the costs of suit, in any proper form of action against the city in any court having cognizance thereof, and in which 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 purposes herein mentioned. The final decree, 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, and entitle plaintiff to judgment therein.

§ 5-371 City protected by payment; recovery from person not entitled thereto.

1. Payment of the compensation awarded in the final decree to the person or persons, corporation, or body politic named therein, (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.
2. Where, however, any such sum or sums, or compensation, determined in favor of any person or persons, or party or parties, whatsoever, whether or not named in such report, shall be paid to any person or persons, or party or parties, when the same shall of right belong and should 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 suits, 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.

§ 5-372 Awards; deposit of.

Whenever:

1. The owner or owners, person or persons interested in any real estate taken or affected in the proceedings, or in whose favor any such sum or sums or compensation shall have been determined, shall be under the age of twenty-one years, of unsound mind, or absent from the state of New York, or
2. 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 final decree, or
3. Such owner or owners, person or persons, being named therein cannot, upon diligent inquiry, be found or
4. There are adverse or conflicting claims to the money awarded as compensation.

It shall be lawful for the city to pay the sum or sums determined to be payable to, or to which such owner or owners, person or persons, respectively, shall be entitled, with interest, thereon into such trust company as the court may direct. Such deposit shall be 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 directly to the owner or owners, person or persons interested therein, respectively, according to their just rights.

§ 5-373 How defects may be remedied.

The supreme court of the judicial district in which the real estate is situated shall have power at any time to correct 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 notices to be given to any party in interest, as it deems proper. If, in any particular, it shall, at any time, be found necessary to amend any pleading or proceeding, or supply any defect therein, arising in the course of any special proceeding authorized by this subchapter, the same may be amended or supplied in such manner as shall be directed by the supreme court, which is hereby authorized to make such amendment or correction.

§ 5-374 Acquisition of real estate for sewage disposal in connection with the city water supply.

1. The commissioner shall be authorized and empowered, subject to the approval of the mayor, by purchase or condemnation, to acquire, real estate In or about the village of Brewster, In or about the town of Carmel, Within the Croton watershed in the county of Westchester, and Within the Esopus and Schoharie watersheds in the counties of Ulster, Delaware, Schoharie and Greene, as may be necessary:

   1. To carry into effect any agreed plan for the disposal of the sewage Of the village of Brewster, Of one or more villages or sewer districts, in the town of Carmel, (and for such purpose, to construct, operate and maintain a sewage disposal plant, equipment and facilities, or the extension and improvement of existing plants, if any, therein), Within the Croton watershed in the county of Westchester and Within the Esopus and Schoharie watersheds in the counties of Ulster, Delaware, Schoharie and Greene, including any agreed plan for the collection thereof in such counties.

   2. To improve and protect the water supply of the city therein, any special or general act to the contrary, notwithstanding.

2. The land which shall be required for the purpose of carrying out any such agreed plan and to protect and improve the water supply of the city within the enumerated localities, except the town of Carmel, shall be taken only with the consent and approval of the authorities thereof.
3. If the city shall have been unable to secure such approval of the municipal authorities of the village or the town board of the town in which the land to be acquired is located, where such real estate shall be located within the Esopus and Schoharie watersheds in the counties of Ulster, Delaware, Schoharie and Greene, and the plans for such operating systems and plants for the collection and disposal of sewage shall have been approved by the state department of health, the city acting by or through its commissioner of environmental protection, notwithstanding the provisions of any special or general act to the contrary, may present a petition to the supreme court in the county involved, stating the proposed location of such operating system or plant for the collection and disposal of sewage, that the plans therefor have been approved by the state department of health, that application for the location thereof in accordance with such plans has been made to the municipal authorities or town board having jurisdiction thereover and has been unreasonably denied, or withheld, and such other facts as the petitioner may deem pertinent, together with a prayer for an order authorizing the construction of such operating system or sewage disposal plant in accordance with such plans. Notice of the time and place of presentation of such petition shall be served on the necessary municipal authorities or town board having jurisdiction over such applications and on the state department of health, and posted in such village or town in at least ten conspicuous public places for a period of ten days prior to the hearing of such petition. Upon the presentation of such petition, the presiding justice shall hear the parties to such proceeding and also such other residents of the sewer district of the village or town as desire to be heard. If the justice presiding be satisfied that the municipal authorities of the village or the town board of the town have unreasonably withheld the approval of the location of such operating system or sewage disposal plant, the justice may, by order, grant the petition. Upon the entry of such order, the city may acquire, by purchase or condemnation, in the manner provided by law, such real estate, rights of way and easements to and into such real estate as may be necessary for the proper erection, construction and operation, of such operating system or sewage disposal plant, and may construct the same in accordance with the plans approved by the state department of health.

Subchapter 3-a: Water Supply

§ 5-376 Determination of additional sources of water supply; reports to board of estimate.

1. 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.
2. 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.

§ 5-377 Further reports to board of estimate; hearings; map or plan of whole work to be approved and filed.

1. 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.
2. 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.
3. 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.
4. 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 5-387 Commissioners of appraisal; powers and proceedings thereof; provisions for filling of vacancies.

1. 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.
2. 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.
3. 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.

§ 5-388 Report of commissioners; compensation for loss to railroad or electric corporation or owner of water power; expenses.

1. 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.
2. 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.
3. 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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:

1. 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;
2. 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 5-423 Damage to value of real property; businesses, and employees thereof.

1. 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.
2. 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.

§ 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.

§ 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.

§ 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.

Subchapter 4: Street Closing Condemnation Procedure

§ 5-430 Definitions.

As used in this subchapter unless otherwise expressly stated, or unless the context or subject-matter otherwise requires, the following terms shall mean:

1. “The court”, “the supreme court”: A special term of the supreme court held in a county within the judicial district in which the real property involved in any proceeding under this subchapter is situated.
2. “Days”: Calendar days, exclusive of Sundays and full legal holidays.
3. “Owner”: A person having an estate, interest or easement or lien, charge or encumbrance on any real property affected by proceedings under this subchapter.
4. “Street”: Includes the surface, subsurface and air space over any street, avenue, road, alley, lane, highway, boulevard, concourse, parkway, driveway, culvert, sidewalk, crosswalk, boardwalk, viaduct and every class of road, square and place, or part thereof, but only such as are public, and does not include marginal street or wharf or state arterial highways except those sections of such state arterial highways enumerated in section 5-432.
5. “Real property”: Includes all surface and subsurface structures within closed streets and all easements and hereditaments, corporeal or incorporeal, and every estate, interest and right, legal and equitable, in lands, and every right, interest, privilege, easement and franchise relating to the same, including terms for years and liens by way of judgment, mortgage or otherwise.
6. “Capital project proceeding”: A condemnation proceeding pursuant to the provisions of this subchapter for capital project purposes, authorized pursuant to chapter nine of the charter.

§ 5-431 Effect upon prior street closings.

This subchapter, or any part thereof, shall not apply to any street heretofore closed.

§ 5-432 Authority to close streets and to acquire any right, title or interest therein.

1. The city may authorize the closing or discontinuance of the surface, subsurface or air space over such streets therein, in whole or in part, upon the determination that (1) such closing or discontinuance will further the health, safety, pedestrian or vehicular circulation, housing, economic development or general welfare of the city and (2) in the case of a partial closing or discontinuance of the subsurface or air space over such streets, will not substantially interfere with pedestrian or vehicular use of such streets. In connection with the closing or discontinuance of the subsurface or air space over such streets, the city may authorize the closing or discontinuance of so much of such streets, in whole or in part, for easements and such other rights as may be necessary or desirable in order to effect the construction and support of any improvements in the closed or discontinued air space over or the subsurface of such streets. Any such closing or discontinuance shall be effected as a capital project. In connection with any such closing or discontinuance, the city may acquire any right, title or interest in the closed or discontinued streets or the closed or discontinued portions thereof, including the surface or subsurface of or the air space over such streets as a capital project, whenever it may deem that such acquisition will more effectually secure the actual discontinuance and closing of streets, in whole or in part, which may be legally discontinued and closed pursuant to this subchapter. The provisions of this subchapter which refer to land or lands within or lying within a closed or discontinued street or within a street to be closed or discontinued shall be deemed to refer to the surface and subsurface of and air space over such street or any part of the surface or subsurface of or air space over such street. The provisions of this subchapter which refer to fee title shall be deemed to refer to any right, title or interest acquired or to be acquired by the city.
2. Compensation and recompense shall be made to the respective owners of the real property affected or damaged by reason of any such closing and to the respective owners of the fee title to the land within the closed street for the damages caused by the taking by the city of such fee title.
3. Notwithstanding the provisions of any general, special or local law, the provisions of chapter one of title four and subchapter four of chapter three of this title shall be applicable to the following sections of the state arterial highway system located within the city of New York provided that with regard to such sections all requirements imposed by federal and state law shall be complied with, including requirements relating to the construction and support of improvements in such sections: Franklin D. Roosevelt drive from and including the Brooklyn Battery crossing to the easterly prolongation of the northerly line of Robert F. Wagner, Senior place.
4. Where the whole or a part of the subsurface of a street has been closed or discontinued pursuant to this section, public utility facilities in such subsurface or part thereof may be maintained in place, or, if the proposed use of such subsurface requires the relocation of utility facilities, the owner of such facilities may relocate such facilities elsewhere within or without such subsurface, provided, however, that any maintenance in place or relocation of such facilities shall be authorized by the city pursuant to subdivision one-a of section 5-433 of this subchapter. Nothing in this section, however, shall be deemed to create any liability arising from the cost of public utility facility relocation not recognized at common law or otherwise created by statute.

§ 5-433 Resolution authorizing the closing or discontinuance of a street; contents of.

Whenever the closing or discontinuance of a street has been authorized as a capital project, the resolution of the board of estimate, providing for the institution of proceedings for the closing or discontinuance of such street, shall:

1. Specify and describe by courses and distances the part or section of such street which it is proposed to discontinue and close and the date upon which such street shall become and be closed, which date shall not be prior to the date upon which the map, showing the street or such part thereof proposed to be closed, shall be filed as provided in section 5-435 of this subchapter, nor subsequent to the date of the entry of the final decree of the court.

1-a. In the case of the closing or discontinuance of the subsurface of a street, in whole or in part, specify if public utility facilities within the subsurface of such street shall be maintained in place or relocated within or without such subsurface so that the maintenance in place or proposed relocation of such facilities is consistent with the proposed use of the closed portion of such subsurface and the requirements of other facilities located therein.

2. State whether the effectual closing of such street, or other public necessity, requires the acquisition of the fee title to the whole or any portion of the land within the street to be closed, and in case it shall state that such acquisition is necessary, shall further request the mayor to provide for such acquisition simultaneously with the closing of such street, and shall specify and describe the part of the lands within the closed street, fee title to which should be acquired.
3. Adopt three similar maps or plans, prepared by the agency requesting such closing and acquisition, showing the street discontinued and closed, the nature and extent of such discontinuance and closing and the location of the immediately adjacent or intersecting open or established public streets of the city, sufficient for the identification and location thereof.
4. Authorize and direct the corporation counsel to make application to the supreme court to have such court without a jury ascertain and determine the compensation which justly should be made to the respective owners of the real property affected, damaged, extinguished or destroyed by such closing.

§ 5-434 Acquisition of street being closed or discontinued.

Whenever the closing or discontinuance of a street requires the acquisition of the fee title to the whole or any portion of the land within the street to be closed, the order of the mayor directing such acquisition shall:

1. Approve three maps, prepared by the agency requesting the street closing and acquisition, showing the land in such closed street the fee title to which is to be acquired.
2. Authorize and direct the corporation counsel to make application to the supreme court to have such court without a jury ascertain and determine the compensation which ought justly be made to the respective owners of the fee title to the land within such closed street.
3. Specify the date upon which the city shall acquire fee title which date shall be the same as that specified in the resolution of the board of estimate as the date upon which the street proposed to be discontinued or closed, shall become and be closed.

§ 5-435 Street closing and acquisition maps; certification and filing of.

1. When the maps described in subdivision three of section 5433 of this subchapter shall have been adopted, as therein provided, such maps shall be certified in the manner provided by law for the certification of similar maps adopted by the board of estimate. One of the maps so certified shall be filed by the agency requesting the discontinuance or closing, and shall remain of record in its office. The second map so certified shall be filed by such agency in the office of the corporation counsel. The third map shall be filed by such agency, and remain of record in the office in which instruments affecting real property in the county in which the closed street may be situated are required to be recorded. Such map shall be final and conclusive upon the city and upon all persons whomsoever.
2. When the maps described in subdivision one of section 5-434 of this subchapter shall have been approved and certified, such maps shall be filed by the agency requesting the acquisition in the same offices specified in subdivision a of this section.
3. Street closing and acquisition maps required to be filed in the office in which instruments affecting real property in the county in which the street to be closed and acquired may be situated shall be filed on the same date.

§ 5-436 Order to expedite.

At any time after the date of the filing of such street closing and acquisition maps, the corporation counsel, or any owner may apply to the court for an order directing any owner or owners, or the corporation counsel, as the case may be, to show cause why further proceedings under this subchapter on the part of such owner or owners or of the corporation counsel should not be expedited. Upon the hearing directed by such an order to show cause, the court, in its discretion, may make an order directing that such proceedings should be expedited in the manner stated therein and also making such further directions with respect to the particulars shown upon the application as shall be just and proper in the premises.

§ 5-437 Release to owners.

In any case where any street which has been conveyed or ceded to the city without compensation, shall be discontinued and closed and the person or persons who have made such grant or conveyance, or his, hers or their heirs, devisees, executors or successors, are the owners and have retained title to the property fronting thereon, the board of estimate is authorized, on behalf of the city, to release and convey without compensation or upon such terms as may appear to such board to be just and equitable, to such owner or owners, his, hers or their heirs, devisees, executors or successors, all the right, title and interest which the city may have so acquired in and to the part of such street, in consideration of the release by such owner or owners of any and all claims for damages or compensation for and on account of the discontinuance or closing thereof. In such case no proceeding shall be had to estimate such loss and damage as provided in this subchapter.

§ 5-438 Closing of street; vesting of title.

Upon the date specified in the resolution of the board of estimate as the date upon which the street, proposed to be discontinued or closed, shall become and be closed, all easements, in and over the land within such closed street, of every nature whatsoever, whether in favor of the public or in favor of the owners of the real property abutting thereon, shall become and be extinguished and destroyed, and ever after such date, such former street shall cease to be or remain for any purpose whatever, a street. In all cases where the city, at the time of such closing, shall acquire the fee title to the whole or any part of the land within such closed street, the city shall acquire and become and be vested with the fee title thereto, simultaneously with the closing thereof.

§ 5-439 Closing of street; effect on real property contracts.

In all cases where any part of any lot or parcel of land or other premises, under lease or other contract, shall be contiguous to any street after the closing thereof, all the covenants, contracts and agreements between landlord and tenant or any other contracting parties, touching the same or any part thereof, shall, upon the date of the closing thereof, respectively cease and determine and be absolutely discharged.

§ 5-440 Notice of application to court.

Whenever the maps shall have been filed pursuant to section 5-435 of this subchapter, the corporation counsel shall institute a proceeding to ascertain and determine the compensation which justly should be made to the respective owners of the real property affected or damaged by the closing of the street and to the respective owners of the fee title to the land in such closed street, the acquisition of which may be provided for in the order of the mayor. Such corporation counsel shall cause a notice of the application to the supreme court to have such court, without a jury, ascertain and determine such compensation, to be published in the City Record for ten days prior to the making of such application, and shall state the time and place when and where such application shall be made. Such notice shall specify and describe the closed street by means of the description contained in the resolution which provided for the closing thereof. It shall also specify what portion, if any, of the land in the closed street the acquisition of fee title to which is provided for in such order.

§ 5-441 Application to court; contents of petition.

Upon the day stated in such notice, or upon such further day to which the court may for good cause adjourn such application, the corporation counsel shall present a petition, signed by him or her on behalf of the city:

1. Setting forth briefly the proceedings had in relation to such discontinuance or closing.
2. Showing the nature and extent thereof.
3. Indicating the real property affected thereby, and to what portion, if any, of the land within the closed street the city has acquired or is authorized to acquire the fee title, by reference to the maps which shall have been filed as provided in section 5-435 of this subchapter. A copy of each map shall be attached to the petition.
4. Praying that the compensation which justly should be made to the respective owners of the real property affected or damaged by reason of such closing and also, in a proper case, the compensation which justly should be made to the respective owners of the fee title to the land within the closed street, acquired or to be acquired in the proceeding, be ascertained and determined by the supreme court without a jury.

§ 5-442 Order granting application; filing thereof.

Upon due proof to its satisfaction of the publication of the required notice and upon the filing of the required petition, the court shall enter an order granting the application, which order shall be filed in the office of the clerk of each county in which the closed street and the property affected or damaged by the closing thereof or any part of either may be situated.

§ 5-443 Filing of damage map; notice to file claims.

1. Thereupon the corporation counsel shall file in the office of the clerk of each county in which the closed street and the real property affected or damaged by the closing thereof or any part of either may be situated, a survey or map showing such real property subdivided into parcels corresponding with the separate ownerships of the land within the closed street acquired by the city and of the real property affected or damaged by the closing thereof, as nearly as the same has been ascertained.
2. The corporation counsel shall also cause to be published in the City Record a notice containing:

   1. The same description of the closed street which was contained in the resolution closing the same and a general description of the real property affected or damaged by the closing of such street, and the land in the closed street acquired or to be acquired in such proceeding by the city.

   2. A statement that the survey or map thereof has been filed and requiring that all claimants, on or before a date therein specified, shall file with the clerk of each county in which such closed street and the real property affected or damaged by the closing or taking thereof, or any part of either, may be situated, a written claim or demand, duly verified, in the manner provided by law for the verification of pleadings in an action, setting forth the real property owned by the claimant, and the claimant’s post office address.

3. The claimant or his or her attorney, within the same time, shall serve on the corporation counsel a copy of such verified claim.

§ 5-444 Proof of ownership.

1. The proof of title to real property for which damages caused by the closing of the street are claimed, and proof of title to real property taken or damaged by reason of the acquisition by the city of the fee title to the land within the closed street, in all cases where the title thereto is undisputed, together with proof of liens, encumbrances or burdens thereon, shall be submitted by the claimant to the corporation counsel, or to such assistant as the corporation counsel shall designate. The corporation counsel shall serve upon all parties or their attorneys who have served on the corporation counsel a copy of their verified claims, a notice of the time and place at which he or she will receive such proof of title. In all cases where the title of a claimant is disputed, it shall be the duty of the court to determine the ownership of such real property, or the right to damages thereto, upon the proof submitted to the court during the trial of the proceeding.
2. The court shall also have power to determine all questions of title and right to damages, incident to the trial of the proceeding.

§ 5-445 Note of issue of the proceeding.

After all parties who have filed verified claims have proved their title, or have failed to do so after being notified by the corporation counsel of the time and place when and where such proof of title would be received by the corporation counsel, such corporation counsel shall serve upon all parties or their attorneys who have appeared in the proceeding, a note of issue thereof and shall file the same with the clerk of the court of the county in which the trial is to be had. The trial shall be had in such county within the judicial district in which the real property affected by the proceeding is situated as the corporation counsel in the note of issue shall designate. Such note of issue shall be served at least ten days before, and shall be filed at least eight days before the date for which the proceeding is noticed for trial. The note of issue shall briefly state:

1. The title of the proceeding.
2. The date and entry of the order granting the application to have the compensation for damages caused by the closing ascertained and determined.
3. The names and addresses of the parties who have filed claims, and the names and addresses of their respective attorneys.
4. A brief statement as to the extent of the street which has been closed and discontinued and the part thereof to be acquired by the city. The clerk of the court must thereupon enter the proceeding upon the proper calendar, according to the date of the entry of the order granting such application. When the note of issue has been served and filed, the proceeding must remain on the calendar until finally disposed of.

§ 5-446 View by court.

It shall be the duty of the justice trying the proceeding to view the real property affected by the closing.

§ 5-447 Decision of the court.

The court, after hearing such testimony and considering such proofs as may be offered, shall ascertain and estimate the compensation which ought justly to be made by the city to the respective owners of the real property affected and damaged by any street closing, and shall also ascertain and determine the compensation to be made to the respective owners of the fee title to the land within the closed street for damages sustained by reason of the acquisition by the city of the fee title thereto. The court shall also ascertain and estimate the value of the city’s interest in the respective parcels of the closed street.

§ 5-448 Corporation counsel to furnish clerks; agencies to furnish maps.

1. It shall be the duty of the corporation counsel to furnish to the court in the proceeding to discontinue and close any street and to acquire title thereto, such necessary clerks and other employees, and to provide such suitable offices as they may require to enable them to fully and satisfactorily discharge the duties imposed upon the court by this subchapter.
2. The board of estimate may require any agency of the city to furnish any surveys or maps required in connection with the closing of any street.

§ 5-449 Amendment of street closing proceeding to include acquisition of fee title to closed street.

Where a street has been closed pursuant to the provisions of this subchapter, and the compensation to be made for the damages caused by the closing thereof is to be ascertained and determined by the supreme court without a jury, and the city is not the owner of the fee title to the land within such closed street and the effectual closing of such street or part thereof, or other public necessity, requires that such city should acquire the fee title to the whole or part of the land within the closed street, the city shall be authorized to acquire the fee title thereto for the purposes provided by this subchapter. Such acquisition may be authorized before or after the institution of a proceeding to have the supreme court without a jury ascertain and determine the compensation to be made for the damages caused by the closing of such street, but the order of the mayor instituting the proceeding for the acquisition shall be approved prior to the filing of the tentative decree in any street closing proceeding. The mayor, in issuing such order, shall comply with the provisions of section 5-434 of this subchapter. Such order shall authorize and direct the corporation counsel to apply to the supreme court in the proper judicial district to have such court without a jury ascertain and determine the compensation which justly should be made to the respective owners of the fee title to the land within the closed street for the damages sustained by such owners on account of the acquisition by the city of the fee title thereto. Such order shall specify the date upon which the fee title to the land within the closed street shall become and be vested in the city, in accordance with the provisions of subdivision three of section 5-434, which date shall not be prior to the entry of the order authorizing the court to ascertain and determine the compensation to be made therefor nor subsequent to the entry of the final decree of the court in such proceeding. Upon the date so fixed, the fee title to the land within the closed street shall become and be vested in the city. Upon the issuance of such order the corporation counsel shall give notice by publication for ten days in the City Record that he or she will apply to the supreme court, stating the time and place when and where such application will be made, to have such court without a jury ascertain and determine the compensation which justly should be made to the respective owners of the fee title to the land within the closed street. Upon such application the corporation counsel shall present to the court a petition signed and verified by him or her, setting forth the action had by the mayor, and indicating the land within the closed street, the fee title to which is to be acquired by the city, by a precise description with courses and distances, having reference to the city map, an extract from which shall be attached, and praying that the compensation to be made therefor shall be ascertained and determined by such court without a jury. At the time and place specified in such notice, unless the court shall adjourn such application to a subsequent day, and, in that event, at the time and place to which the same may be adjourned, upon due proof to its satisfaction of the publication of such notice and upon the filing of such petition, the court shall enter an order granting the application, which order shall be filed in the office of the clerk of the county in which the closed street is situated. Awards for damages, due to the acquisition of the fee title to the land within the closed street, shall be made as provided in any proceeding instituted pursuant to this subchapter.

§ 5-450 Agreements with owners.

1. It shall also be lawful for the board of estimate, with respect to a street closing, and the mayor, with respect to acquisition, either before of after the institution of a proceeding under this subchapter, to agree with the owners of the real property that will be affected by such closing, for and about the cession to the city of other real property included within the boundaries of any established street shown on the city map, in lieu of the real property comprised within the lines of the closed street, or to agree for and about the compensation to be made to such owners for the same or for and about the value of real property to be ceded in lieu of such discontinued or closed portion or portions of such street.
2. In case of any such agreement or agreements with part only of the owners entitled to and interested in the same real property so affected, for the purpose of making any such discontinuance or closing, or cession in lieu of such closing, the same shall be valid and binding upon the parties thereto, and the court shall nevertheless enter upon and make or proceed with its estimate, and tentative and final decrees as to the residue of such real property affected by the closing, concerning which the owners thereof shall not agree.
3. The final decree of the court shall be of like force and effect in regard to the matters comprised therein, as if no such agreement as to the part of the premises had been made.

§ 5-451 Tentative decree; preparation, contents and filing of.

1. The court shall instruct the corporation counsel to prepare tabular abstracts of its estimated damage due to the closing, and of the damage due to the acquisition by the city of fee title to the land within the closed street and of the value of the city’s interest in the respective parcels of the closed street. The tabular abstract of estimated damage due to the closing of the street shall set forth:

   1. The amount of loss and damage to each and every parcel of real property affected by the proceeding.

   2. The name of the respective owners of each and every parcel of real property affected thereby, as far as the same shall be ascertained.

   3. A sufficient designation or description of the respective lots or parcels of real property damaged by the closing of the street or by the acquisition of the fee title to the lands in the closed street, by reference to numbers of the respective parcels indicated upon the surveys, diagrams, maps or plans which shall be attached to such tabular abstracts.

2. The court shall appraise and determine and separately set forth and state in the tabular abstract, the value of the right, title and interest of the city in and to the fee of the land within the closed street.
3. Such tabular abstracts shall be signed by the justice trying the proceedings and filed with the clerk of each county in which the closed street and the real property abutting thereon or any part of either may be situated and when so filed shall constitute the tentative decree of the court as to awards for damages and as to the value of the city’s interest in the respective parcels of land within the closed street.

§ 5-452 Notice to file objections; hearing thereon.

1. Upon the filing of the tentative decree, the corporation counsel shall give notice, by advertisement to be published for fifteen days in the City Record, of the filing of such tentative decree, and that the city and all other parties to such proceeding or in any way interested in the real property affected thereby, having any objections thereto, shall file such objections, in writing, duly verified in the manner required by law for the verification of pleadings in an action, and setting forth the real property owned by the objector and his or her post office address, with such clerk within twenty days after the first publication of such notice, and that the corporation counsel, on a date specified in the notice, will apply to the justice who made the tentative decree to fix a time when the justice will hear the parties so objecting. Similar notice for at least ten days shall be given of the filing of any new, supplemental or amended tentative decree and for the filing of objections thereto. Every party so objecting or such party’s attorney shall, within the same time, serve on the corporation counsel a copy of such verified objections.
2. Upon such application, the justice shall fix the time when he or she will hear the parties so objecting and desiring to be heard. At the time fixed, the justice shall hear the person or persons who have objected to the tentative decree or to the new, supplemental or amended tentative decree, and who may then and there appear, and shall have the power to adjourn, from time to time, until all parties who have filed objections and who desire to be heard shall have been fully heard.
3. After the filing of the tentative decree or of any new, or supplemental, or amended tentative decree, no award for damages shall be diminished without notice to the owner of the real property affected or the owner’s attorney appearing in the proceeding, and an opportunity given for a hearing in regard thereto, before the signing of the final decree.

§ 5-453 Correction of defects.

The court shall have power at any time to correct any pleading or any defect or informality, in any special proceeding authorized by this subchapter, that may be necessary, or to amend any description, or cause other real property to be included therein or real property included therein to be excluded therefrom, or to permit any person having an interest therein to be made a party thereto, or to relieve from any default, mistake, or irregularity or to direct such further notice to be given to any party in interest as it shall deem proper.

§ 5-454 Final decree; preparation, contents and filing of.

1. After considering the objections, if any, and making any correction or alteration in the tentative decree as to any award or as to any matter in the tentative decree which the court shall consider just and proper, the justice trying the proceeding shall give instructions to the corporation counsel as to the preparation of the final decree. Such decree shall consist of the tentative decree, and shall have:

   1. The final awards for damages due to the closing as determined by the court set opposite the respective damage parcel numbers in a column headed “final awards for closing damages” in the tabular abstract of awards.

   2. The final awards for damages due to the acquisition of the fee title in the land within the closed street set opposite the respective parcels of the closed street in the column headed “final awards for land in closed street” in the tabular abstract of awards.

   3. The value of the city’s interest in the land within the respective parcels of the closed street in a column headed “value of city’s interest in respective parcels of closed street.”

2. Such final decree shall contain a statement:

   1. Of the facts conferring on the court jurisdiction of the proceeding.

   2. Of such other matters as the court shall require to be set forth.

   3. That the amounts set opposite the respective damage parcel numbers in the column headed “final awards for closing damages” in the tabular abstract of awards constitute and are the just compensation which the respective owners are entitled to receive from the city for damages caused by the closing of the street.

   4. That the amounts set opposite the respective parcels of the closed street in the column headed “final awards for land in closed street” in the tabular abstract of awards, constitute and are the just compensation which the respective owners are entitled to receive from the city for damages caused by the acquisition by the city of the fee title to the land within the closed street.

   5. That the amounts set opposite the respective parcels of the closed street in the column headed “value of city’s interest in the respective parcels of the closed street” in such tabular abstract constitute the sums of money to be paid to the city for a conveyance of the city’s interest therein by the parties entitled to a conveyance thereof.

3. Such final decree shall also set forth:

   1. The several parcels damaged by the closing of the street and the several parcels of the closed street and the several parcels outside of the closed street, by reference to the numbers of such parcels on the respective maps, survey, diagrams, or plans attached thereto, duly corrected, when necessary, and it shall not be necessary to describe any parcels by a description by metes and bounds.

   2. The names of the respective owners of the several parcels damaged by the closing of such street, as far as the same shall have been ascertained, provided that in all cases where the owners are unknown or not fully known to the court, it shall be sufficient to set forth and state in general terms in the decree the respective sums to be allowed and paid to or by the owners of the respective parcels for loss or damage, without specifying their names or their estates or interests therein, and in such cases the owners may be specified as unknown.

4. The final decree, together with all of the affidavits and proofs upon which the same is based, shall be filed in the office of the clerk of each county in which the closed street and the real property damaged by the closing thereof or any part of either may be situated. The final decree, unless set aside or reversed on appeal, shall be final and conclusive as well upon the city as upon the owners of the real property mentioned therein, and also upon all other persons whomsoever.

§ 5-455 Appeals to appellate division and court of appeals.

1. The city, or any party or person affected by the proceeding and aggrieved by the final decree of the court therein, may appeal to the appellate division of the court. An appeal from the final decree of the court must be taken within thirty days after notice of the filing of such final decree. Such appeal shall be taken and heard in the manner provided by the civil practice law and rules and the rules and practice of the court in relation to appeals in special proceedings. Such appeal shall be heard and determined by the appellate division upon the merits, both as to the questions of law and fact. The determination of the appellate division shall be in the form of an order. 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 property with which the appeal is concerned. The final decree of the court shall be deemed to be final and conclusive upon all parties and persons affected thereby, who have not appealed. Such appeal shall be heard upon the evidence taken before the court, or such part or portion thereof, as the justice at special term, who made the decree appealed from, may certify, or the parties to such appeal may agree upon as sufficient to present the merits of the questions in respect to which such appeal shall be had.
2. The city, or any party or person affected by the proceeding and aggrieved by the order of the appellate division entered on any such appeal, may appeal to the court of appeals from such order. Such appeal shall be taken and heard in the manner provided by the civil practice law and rules and the rules and practice of the court of appeals in relation to appeals from orders in special proceedings. The court of appeals may affirm or reverse the order appealed from and may make such order or direction as shall be appropriate to the case.

§ 5-456 Taxation of costs, charges and expenses.

1. The costs or charges of any agency of the city, or others, which shall be required by law to be taxed, shall not be paid or allowed for any service performed under this subchapter, unless the same shall be taxed by the court. A bill of such costs, charges and expenses shall be filed in the office of the clerk of the court in the county in which the land is situated at least ten days before the same shall be presented for taxation, and there shall be annexed thereto a statement of the amounts, if any, previously taxed, to whom the same were payable and the date of such taxation. A notice shall be published in the City Record, for ten days, of the time and place of taxing such costs, charges and expenses, which shall be thereupon taxed by a justice of the supreme court, or by a referee under his or her special order.
2. All such costs and expenses or disbursements shall be stated in detail in the bill of costs, charges and expenses, and shall be accompanied by such proof of the reasonableness and necessity thereof as is now required by law and the practice of the court upon taxation of costs and disbursements in other special proceedings or actions in such court.

§ 5-457 Awards and costs; when, how and to whom paid.

1. All damages awarded by the court, and all costs and expenses which may be taxed in the proceeding, shall be paid by the city to the respective persons mentioned or referred to in the final decree of the court or in whose favor such costs and expenses shall be taxed. In a capital project proceeding, such costs and expenses shall be deemed part of the cost of the acquisition of land or permanent rights in land and may be financed in the same manner as the acquisition of land or permanent rights in land.
2. Whenever the amount of damages awarded in any final decree, together with the costs which shall have been taxed in the proceeding, shall exceed the balance remaining in the fund, from which such amounts are payable, after deducting all outstanding claims against such balance, the court, upon proper application of an owner or other person entitled to such excess, shall require the city to issue and sell serial bonds the proceeds of which shall be paid into such fund to meet such deficiency.
3. In default of payment, in a capital project proceeding, the owners, or other persons entitled to be paid, may at any time after application first made to the comptroller therefor, sue for and recover the amount due, with lawful interest and the costs of suit.
4. Except when any sum or sums of money shall in the final decree be made to “unknown owners”, the supreme court, upon the application of the city or of any person entitled to or claiming to be interested in the lands, tenements or hereditaments for which such awards have been made, or any part thereof, shall either direct the same to be retained by the comptroller, or to be paid into the supreme court until the title thereto or the respective interests and estates of all parties therein shall be determined by the court. Upon such application the court may take the proofs and testimony of the claimant or claimants or parties interested in the lands for which the awards have been made or refer the matter to a referee for such purpose.

§ 5-458 Awards; deposits of; payment of, to persons not entitled thereto.

1. Whenever the owner, in whose favor any awards shall be made, shall be a minor or incompetent or absent from the city, and also in all cases where the name of the owner shall not be set forth or mentioned in the final decree, or where such owner, being named therein, cannot be found, or where there are adverse or conflicting claims to the money awarded as compensation, it shall be lawful for the comptroller to pay such awards made in the final decree into the supreme court, to be invested, secured, disposed of and paid out as such court shall direct. Such payment shall be as valid and effectual in all respects as if made to such owners according to their just rights, if they had been known and had all been present, of full age and competent.
2. In all cases, however, where any such award, which shall be made in the final decree in favor of any person whether named or not named in the final decree of the court, shall be paid to any person or persons whomsoever, when the same shall of right belong, and ought to have been paid to some other person or persons, it shall be lawful for the person or persons, to whom the same ought to have been paid, to sue for and recover the same, with lawful interest and costs of suit, from the person or persons, to whom the same shall have been paid, as so much money had and received to the use of the plaintiff or plaintiffs, by the person or persons, respectively, to whom the same shall have been so paid, and the final decree of the court, with proof of payment, shall be conclusive evidence of such payment in such suit.

§ 5-459 Purchase of awards by the city.

The provisions of section 5-329 of this subchapter shall be construed to have application to and to be incorporated into this subchapter.

Chapter 4: Expense Budget

§ 5-501 Director of management and budget; access to agencies.

The director of management and budget shall have access, at all reasonable times, to the offices of any agency for the purpose of carrying out the duties imposed upon him or her by law. The powers and duties of the director as to private institutions shall extend only to the moneys received from the city.

§ 5-502 Departmental estimates; duplicates.

The director of management and budget, upon receipt of departmental estimates submitted to him or her, shall forward copies thereof to the council, to the board of estimate and each community board and borough board. If the departmental estimate submitted by an agency contains budget requests for programs related to criminal justice, the director of management and budget shall also forward a copy of such budget requests to the coordinator of criminal justice.

§ 5-503 Departmental estimates; preparation.

To assist in the preparation of departmental estimates, the head of each agency shall designate an official or employee thereof as budget officer who shall, in each year under the direction of such head, prepare the departmental estimate for such agency.

§ 5-504 Departmental estimates; necessity for funds requested.

1. The departmental estimates shall contain statements and other data showing the necessity for the funds requested and such supporting data as may be required by the director of management and budget.
2. The departmental estimates shall include particularly and in detail the reasons for all individual increases or decreases compared with the budget as modified for the prior year.
3. Departmental estimates for any agency that has local service districts within community districts and boroughs shall contain where practicable a statement of proposed direct expenses in each such service district for each requested unit of appropriation prepared according to the requirements specified in subdivision d of section one hundred twelve of the charter.

§ 5-505 When the director of management and budget is to prepare departmental estimate.

If a departmental estimate is not submitted on such date as the mayor may direct, the director of management and budget shall cause to be prepared such estimate and data necessary to include departmental estimate in the budget for such agency for the following fiscal year. In no event later than the fifteenth day of January, or such earlier date as the mayor may direct, the director of management and budget will forward copies of such estimate to the secretary of the board of estimate, the council and each community board and borough boards.

§ 5-506 Departmental estimates; form of.

The classification of such estimates shall be as nearly uniform as possible and, as far as practicable, shall exhibit clearly the functions performed by each agency and the purpose of appropriations made.

§ 5-507 The budget; details.

In addition to the requirements set out in the charter, the proposed budget and the preliminary budget shall be prepared in such detail as to the titles of appropriations, the terms and conditions under which the same may be expended and the aggregate sum allowed to each agency, as the mayor shall deem advisable.

§ 5-508 The budget; miscellaneous revenues appropriated for specific purposes.

The budget and preliminary budget shall include the several items and amounts payable from funds other than those derived from taxation which are specifically provided by law to be so expended and which, in the judgment of the director of management and budget, are deemed necessary for the proper conduct of the various agencies, either in whole or in part as a supplement to the fund obtainable from taxation, and shall show the aggregate sum allowed to each agency and the total of all allowances contained in the budget to be obtained from taxation or other funds.

§ 5-509 Items to be included in annual budget.

There may annually be included in the budget:

1. A sum not exceeding eight thousand dollars to be paid to the trustees of the seventh regiment armory building, as an equivalent and in lieu of the rental of an armory for such regiment, to be applied to the preservation, maintenance and improvement of the armory building, such sum to be paid in the month of January in each year.
2. The amount necessary for the maintenance of the buildings, instruments and equipment of:

   a. The meteorological and astronomical observatory.

   b. The American museum of natural history.

   c. The metropolitan museum of art, not exceeding ninety-five thousand dollars.

   d. The Brooklyn institute of arts and sciences.

3. Such sums to any hospitals, charitable, eleemosynary, correctional or reformatory institution, wholly or partly under private control for the care, support and maintenance of its inmates, and for the care, support, maintenance and secular education of inmates of orphan asylums, protectories, homes for dependent children or correctional institutions and any other sum or sums which may heretofore have been duly authorized by law to be paid within the city of New York or any part thereof for the education and support of the blind, the deaf and dumb and juvenile delinquents and such sums other than salaries for reimbursement to any duly incorporated charitable institution or society employed by the commissioner of welfare in the placing out, supervision and transfer of children who are public charges; such payments to be made only for such inmates as are received and retained therein pursuant to rules established by the state board of social welfare. The city may in any year, and from time to time, increase or diminish, the sum authorized to be paid to any such institution, association, corporation or society. The final estimate shall specify each institution by its corporate name and the sum to be paid thereto, with a reference to the laws authorizing the appropriation, and the comptroller is authorized to pay the sum to such institution upon its appearing to his or her satisfaction in such manner as he or she shall prescribe that the expenditure thereof by the institution is lawful and proper. Appropriations shall be made under this section to any corporation only if the mayor, or the president of the borough in which the chief office of such corporation is situated, is notified of all meetings of its board of management, and is empowered to attend the same or designate in writing some person to do so in his or her behalf; but this shall not be construed as impairing any existing powers of visitation vested in the supreme court or the state board of social welfare, or any provisions of law requiring statements by such corporations as to their affairs.
4. A sum for the due observance of Memorial day to be expended for such purpose.
5. A sum as may be necessary to pay the salaries of county officers within the counties of New York, Kings, Bronx, Queens and Richmond, and likewise all other expenses within such counties and each of them which are county as distinguished from city charges and expenses.
6. A sum sufficient, as determined by the council and the board of estimate, to maintain the rates of fare of the New York city transit authority existing on January first, nineteen hundred sixty-six.

§ 5-510 Payment of certain moneys from general fund

For the purpose of adjusting the reductions heretofore or hereafter made in the amount of taxes receivable by reason of the operation of the provisions of the tax law providing for the deduction from special franchise taxes of payments made in the nature of a tax, it shall be lawful for the comptroller and commissioner of finance to transfer at any time from the moneys in the general fund to the credit of the appropriate account or accounts, a sum or sums equivalent to but not exceeding such deductions.

Chapter 5: Criminal Justice Account

§ 5-601 Criminal Justice Account.

There shall be within the general fund of the city a special accounting of the revenues and expenditures included in the safe streets-safe city omnibus criminal justice program. Such accounting shall be known as the “Criminal Justice Account.”

§ 5-602 Revenues.

There is hereby established within the general fund of the city, a special accounting of revenues, composed of the following revenue sources, dedicated for the purposes identified in the safe streets-safe city omnibus criminal justice program:

1. a designated portion of the real property tax (to the extent not required for debt service);
2. the special anti-crime lottery within the city established and operated by the New York state division of the lottery:
3. the city personal income tax surcharge, to the extent required to be credited to the criminal justice account by subdivision (d) of section 11-1704 of the code; and
4. such other sources as may be credited or transferred to the criminal justice account.

§ 5-603 Dedication.

1. Except as otherwise provided in this chapter, the revenues identified pursuant to section 5-602 of this chapter shall be used for criminal justice purposes, including hiring of police officers, correction officers, probation officers, attorneys and ancillary personnel; funding public safety, education, youth services and community anti-crime programs; increasing capacity in the correction area; and engaging in such other efforts as are designed to protect public safety and deter crime in the city.
2. There shall be a separate accounting by the city within the general fund of the proceeds of the anti-crime lottery established and operated within the city by the New York state division of the lottery. Such proceeds shall be used exclusively for educational programs, including, but not limited to, increased security in elementary schools, special education sites and after school activities; increasing the number of community schools; providing academic and non-academic evening school activities for high school students; providing support services to students at risk of dropping out of school; strengthening basic skills of children in kindergarten through fourth grade; and providing additional after-school educational opportunities in the municipal library system.

§ 5-604 Expenditures.

1. No monies included in the revenue sources established pursuant to section 5-602 shall be available for appropriation unless a schedule for the proposed uses of the total projected amount of such revenue sources shall be set forth as a supporting schedule to the preliminary budget required to be presented by the mayor pursuant to charter section two hundred thirty-six, and as a supporting schedule to the executive budget required to be presented by the mayor pursuant to charter section two hundred thirty-six, and as a supporting schedule to the executive budget required to be presented by the mayor pursuant to charter section two hundred fifty. Such schedule shall indicate each agency and unit of appropriation to which amounts are proposed to be appropriated, and shall indicate by unit of appropriation the intended uses of such amounts and the objectives to be met.
2. The monies so available for appropriation shall be spent only in accordance with applicable state law and charter sections two hundred fifty-four, two hundred fifty-five, and two hundred fifty-six, or in accordance with charter sections one hundred seven or two hundred sixteen. If any source within the account accrues revenues in excess of the amount projected in the adopted budget to be received from such source, such excess revenues may not be expended except in accordance with such charter sections, and for the purpose of section one hundred seven of the charter shall be deemed new revenues pursuant to subdivision e of section one hundred seven of the charter.

§ 5-605 Reporting requirement.

The director of the office of management and budget, in consultation with the police commissioner and the heads of appropriate city agencies, shall make a year-end annual report specifying the actual year end spending for each of the purposes identified in the schedule required by subdivision a of section 5-604, updated to reflect changes, if any, made at adoption, to the chairpersons of the finance and public safety committees of the council on the allocation of funds from the criminal justice account and the status of implementation of the safe streets-safe city omnibus criminal justice program. Such report shall include a schedule of new hires for all police forces and criminal justice agencies; a status report on civilianization and workload sharing efforts of the police departments; the level of patrol strength in all borough commands of the city; status of the implementation and operation of youth, employment and senior citizen programs; and the status of programs funded through the education portion of the criminal justice account.