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a. 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.
b. 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.
c. 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.
a. 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.
b. 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.
c. 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.
a. 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.
b. 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.
c. 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.
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.
a. 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."
b. 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.
c. 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.
d. 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.
a. 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.
b. 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.
a. 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.
b. 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.
a. 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.
b. 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.
c. 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.
d. 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.
a. 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.
b. 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.
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