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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.
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.
a. Any one of such commissioners of appraisal may issue subpoenas and administer oaths to witnesses; and they or any one of them, in the absence of the others, may adjourn the proceedings from time to time in their discretion; but they shall continue to meet from time to time as may be necessary, within the judicial district where the lands or any part thereof may be located, to hear, consider and determine upon all claims which may be presented to them under the provisions of this subchapter. Within thirty days after the commissioners have been appointed and have qualified, the city shall furnish the commission with a list of the claims that have been filed and are to be determined and the commissioners shall have full power and authority to prepare a calendar of all such claims and to determine the order and priority of the hearing of such claims; to set down the hearing of any such claim for a day certain; and to order an inquest in or a dismissal of any claim for failure of a party to appear at the time designated for the hearing thereof unless the commissioners shall determine that a reasonable excuse for such failure exists. They shall view the real estate laid down on the maps and shall hear the proofs and allegations of any owner, lessee, or other person in any way entitled to or interested in such real estate or any part or parcel thereof, and also such proofs and allegations as may be offered on behalf of the city. They shall rule upon motions and objections made in connection with the admission or exclusion of testimony or evidence in any hearing before the commissioners and shall make findings upon which their awards are made and separate findings upon which the fees and allowances are based. They shall reduce the testimony taken before them to writing, and after the testimony is closed, they or a majority of them, all having considered the same, and having an opportunity to be present, shall without unnecessary delay, ascertain and determine the just and equitable compensation which ought justly to be made by the city to the owners or the persons interested in the real estate sought to be acquired or affected by such proceedings, including just and equitable compensation to the owner of any leasehold taken or affected in the proceeding. Such commissioners of appraisal shall make reports of their proceedings to the supreme court as in the next section provided, with the minutes of the testimony taken by them and the findings of fact made by them, and they shall be entitled to the payments hereinafter provided for their services and expenses to be paid from the fund hereinafter provided.
b. In case of the death, resignation, refusal or neglect to serve of any or all of such commissioners of appraisal, the corporation counsel shall upon ten days' notice to be given by advertisement in the newspapers designated as hereinbefore provided, apply to the supreme court at a special term thereof, to be held in the judicial district in which the land or any part thereof affected by the proceedings, is situated, for the appointment of one or more commissioners to fill the vacancy or vacancies so occasioned.
c. In the event that the corporation counsel shall fail, neglect or refuse to make such application within thirty days after any such vacancy shall have occurred as hereinabove provided, any person interested in the proceeding may similarly apply after such advertisement for the filling of any vacancy. The city of New York shall be liable for the reasonable expenses of such advertisement together with ten dollars costs of motion in the event of any such application by any such interested person.
a. The commissioners of appraisal shall prepare a report, and such copies thereof as may be required. Such report or reports shall contain a brief description of the several parcels of real estate so acquired, taken or affected, with a reference to the map or maps as showing the exact location and boundaries of each parcel; a statement of the sum estimated and determined upon by them as a just and equitable compensation to be made by the city to the owners or persons entitled to or interested in each parcel so taken, or as to which any right, title, interest, privilege or easement is taken, acquired or extinguished; and a statement of the respective owners or persons entitled thereto, or interested therein. In every case where the owners and parties interested, or their respective estates or interests are unknown, or not fully known to the commissioners of appraisal, it shall be sufficient for them to set forth and state in general terms the respective sums to be allowed and paid to the owners of, and parties interested therein generally, without specifying the name of estates or interests of such owners, or parties interested, or any or either of them.
b. Where loss, damage or expense, direct or consequential, has resulted to any duly incorporated railroad corporation, operating a steam railroad in any county in which land shall be acquired in pursuance of the provisions of this subchapter, or by reason of any of the matters in this subchapter involved, or any electric corporation, or the owner of any water power on any of the streams or waters affected by the provisions of this subchapter, the board of estimate is hereby authorized and empowered to agree with such railroad corporation, or any such electric corporation, or the owner of any such water power, upon the compensation which shall be made to it for such loss, damage or expense. In the event of no agreement being reached between such board and such railroad corporation, or any such electric corporation, or the owner of any such water power, the commissioners of appraisal appointed to estimate damages for lands acquired in such county are hereby authorized and directed to pass upon such claim and to make awards therefor as provided in this subchapter.
c. Subject to review by the court as hereinafter provided, the commissioners may also recommend such sums, if any, as shall seem to them proper to be allowed, to parties appearing in the proceeding, as expenses and disbursements including reasonable compensation for witnesses and what sums, if any, ought to be paid to the general or special guardian of an infant, idiot, or person of unsound mind, or to an attorney appointed by the court to attend to the interests of any known owner or party in interest who has not appeared in the proceedings for expenses or counsel fees.
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.
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.
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.
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.
All claims of every name and nature under this subchapter, except claims provided for under section 5-398, must be exhibited and presented to the commissioners of appraisal having jurisdiction of the same within the following periods of time:
(a) in the case of real estate acquired in fee or in which an easement is acquired, within three years after title thereto shall have become vested in the city;
(b) in the case of claims under section 5-423, within three years from the date of the filing of the oaths of the commissioners appointed after the acquisition by the city of New York of the real estate, the acquisition of which is claimed to be the direct or indirect cause of damage, or within three years from the execution of the plan or work, the execution of which is claimed to be the direct or indirect cause of damage. In the case of real estate acquired in fee or in which an easement is acquired, every person neglecting or refusing to present a claim within such time shall be deemed to have surrendered his or her interest in such real estate or his or her claims for damages thereto, except so far as such person may be entitled as an owner of, or person interested in the award, if any, made by the commissioners of appraisal. All other claims not exhibited and presented within the time above specified shall be forever barred.
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.
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