Opinion of the Court, per VANN, J.

[Vol. 196.

S. C., 125 U. S. 345; Ensign v. Barse, 107 N. Y. 329; People v. Turner, 117 N. Y. 227; Matter of Trustees of Union College, 129 N. Y. 308; Cooley on Taxation [3rd ed.], 526; Sutherland on Statutory Construction, § 483.)

A curative statute acts directly upon the defective assessment and legalizes it without further procedure by the taxing officers. This may legally be done as to such features of the procedure as might have been omitted in the original statute without affecting its validity. When, however, the new act requires something more to be done by the taxing officers and legalizes the assessment, provided those acts are done, it provides for a reassessment, or the completion of the old assessment. Such legislation is valid, provided the original taxing act was valid and the omission sought to be remedied is not jurisdictional, but an irregularity. Such, as we read it, is the act now before us, which we uphold as constitutional, both upon principle and authority.

To this general statement there is one exception. The last sentence of the first section of the act of 1909 is as follows: "No irregularity heretofore existing in the said assessments of bank shares shall be a lawful cause for relief by said board upon application made under this act or by the court in any proceeding or action heretofore or hereafter instituted." To the extent that this prohibits the courts from giving relief in actions or proceedings pending when the act was passed on account of irregularities theretofore existing, we regard it as unconstitutional, because in effect it legalizes the assessment, even if no opportunity to be heard is given as required by the other provisions of the act. This would indorse and perpetuate the original evil of condemnation without a hearing, which the legislature had no power to do, either directly by legalizing the assessment without further proceedings, or indirectly by depriving the constitutional courts of jurisdiction in matters then pending before them. (Gilman v. Tucker, 128 N. Y. 190; Cooley on Constitutional Limitations, 354.)

That sentence, however, stands by itself, and is so separated from the rest of the statute in purpose and meaning that it

N. Y. Rep.]

Opinion of the Court, per VANN, J.

may be eliminated without affecting the validity of the remainder. It does not depend on the rest of the statute and the rest of the statute does not depend upon it. They are not so related in substance and object that it is impossible to suppose that the legislature would not have passed the one without the other. The rule of elimination should, therefore, be applied. (Matter of Village of Middletown, 82 N. Y. 196; Matter of Metropolitan Gas Light Co., 85 N. Y. 526; Skaneateles Water Works Co. v. Village of Skaneateles, 161 N. Y. 154; 26 Am. & Eng. Ency. [2d ed.] 570.)

The final question, involving the effect of the statute upon this proceeding as presented by the record before us, is not without embarrassment. What is the situation that confronts us? The return says that many millions of dollars are involved in this proceeding and others of like character commenced before the act of 1909 was passed. All taxation upon shares of stock in banks in the city of New York during a long period is infected with the same evil that compelled us to reverse in the case of the Bridgeport Savings Bank. Since that decision was made a valid statute has been passed, which, if properly observed, will remedy the bulk of the evil, but this proceeding and many others were instituted before the act took effect. That act is before us, as it was before the courts below, but what has been done under it is not before us and was not before them. The return is silent upon that subject. We are not informed, officially, what, if anything, has been done by the taxing authorities towards completing the assessment by following its requirements. Compliance cannot be presumed, and if it could, we should not know what was done with the assessment against the relator, whether it was canceled or reduced or completed in the original amount.

The statute is not self-executing, as it requires action by the taxing officers, such as the publication of notice in certain newspapers for a specified period; authorizes application for cancellation and reduction to be made within another period; provides for the determination of such applications by a date named and the like. That date had not arrived and none of

these periods had expired when the proceeding was argued before the Special Term, and the time for action in one respect was still running when the appeal was argued before us. The record is imperfect, and in view of the curative act it would be dangerous to finally pass upon the rights of the parties until all the facts have been placed before us so that complete justice can be done. (Matter of Douglas v. Bd. Suprs. Westchester Co., 172 N. Y. 309, 313.) The peculiar situation requires a further and supplemental return, embracing all that has been done under said act affecting the assessment against the relator, or its stockholders. When all the facts are in the record the proper judgment can be pronounced, which will protect every right of the relator and at the same time afford the city of New York the protection which it was the intention of the legislature to provide.

The orders of the courts below should be reversed, with costs in both to appellant, the costs in the Appellate Division being fixed at fifty dollars and disbursements, and the matter remitted to the Special Term, with leave to the respondents to there move for leave to file a supplemental return.

CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.

Orders reversed, etc.

In the Matter of the Application of the CITY OF NEW YORK, Relative to Acquiring Lands for the Purpose of Opening Decatur Street in the Borough of Brooklyn.

FRANK B. WALKER, Appellant; JOHN SCHAUF et al., Respondents.

Streets - condemnation of fee of street

erroneous award.

The city of New York instituted proceedings to acquire the fee to lands upon which a street had been laid out and used. The owner had con. veyed various parcels on both sides of the street but retained title to the fee of the street. Commissioners awarded a substantial sum to unknown owners. The entire award is claimed by both the purchaser of the fee of the street and by the abutting owners. Held, that no party

is entitled to more than a nominal award and that so far as now appears none of the claimants are justly or equitably entitled to any part of the fund so awarded. Hence the proceeding is remitted to the Special Term. Matter of City of New York (Decatur St.), 133 App. Div. 321, reversed.

(Argued October 6, 1909; decided November 9, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 18, 1909, which affirmed an order of Special Term setting aside the report of a referee appointed to determine to whom an award in condemnation proceedings should be paid. The facts, so far as material, are stated in the opinion.

John M. Perry for appellant. The court below erred in holding as matter of law that the fee had only a nominal value. (Osborne v. A. T. Co., 189 N. Y. 397; Trowbridge v. Ehrlich, 191 N. Y. 364; Matter of Eleventh Ave., 81 N. Y. 436.) The court below erred in assuming to import an irrelevant equity in favor of the abutter. (Cooley on Taxn. [2d ed.] 606; 2 Desty on Taxn. 1237, 1238; 25 Am. & Eng. Ency. of Law, 496; Matter of Meade, 74 N. Y. 216; 1 Hare's Am. Const. Law, 310; French v. B. A. Co., 181 U. S. 334; Norwood v. Baker, 172 U. S. 269.)

James A. Sheehan for John Schauf et al., respondents. The awards made in the report of the commissioners were intended for all parties interested. (Matter of Eleventh Avenue, 81 N. Y. 436; Seton v. City of New York, 130 App. Div. 148; Matter of Newton, 45 N. Y. S. R. 18; Matter of William & Anthony Streets, 19 Wend. 694; Matter of Boston Road, 27 Hun, 409.) The appellant has no interest in the awards directed to be paid to the respondents Schauf and Jung. (Potter v. Boyce, 73 App. Div. 383; K. C. F. Ins. Co. v. Stevens, 87 N. Y. 287; Van Winkle v. Van Winkle, 184 N. Y. 193.) The respondent Schmidt is entitled to be compensated for his private easements in Decatur street, acquired by the city. (Matter of Eleventh Avenue, 81 N. Y. 436; Matter of City of New York, 120 App. Div.

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[Vol. 196.

297; De Peyster v. Mali, 92 N. Y. 262.) The determination of the Special Term as to the distribution of the awards was equitable. (Matter of Eleventh Avenue, 81 N. Y. 436; Mortimer v. M. E. R. R. Co., 22 J. & S. 322; C., etc., R. R. Co. v. Cicero, 157 Ill. 48; Sedgwick on Damages, ch. 2, p. 47; Leeds v. M. G. L. Co., 90 N. Y. 26.)

Merle I. St. John, for Juliana Wenzler, respondent. The respondent as the owner of this abutting property at the time title vested in the city became entitled to all the award therefor, except a nominal award of one dollar for the naked fee. (Matter of Mayor, etc., 2 Wend. 472; Matter of Jerome Ave., 120 App. Div. 297; Matter of Beverly Road, 131 App. Div. 147; Matter of Adams, 141 N. Y. 297; Village of Olean v. Steiner, 135 N. Y. 341; Matter of Eleventh Avenue, 81 N. Y. 436; Matter of Bd. of St. Opening, 27 App. Div. 265; Matter of Taber, 91 App. Div. 612; Matter of Austin Place, 125 App. Div. 821.)

VANN, J. The courts below had much difficulty in dividing a substantial sum of money between parties, not one of whom was regarded as entitled to more than a nominal amount thereof. They found division difficult as there was no equitable principle upon which it could be founded. The leading facts out of which the controversy arose were found by the referee in substance as follows: Van Voorhis street, which was laid down on a map made about 1862, pursuant to chapter 296 of the Laws of 1852, is identical with Decatur street, the subject of this proceeding. One Ivins soon after the street was thus laid out acquired title to the fee thereof and of the property adjoining, and prior to his death in 1863 he caused a map to be made of the property on which Van Voorhis, now Decatur, street appeared as it had previously been laid out on the map of the commissioners. Mr. Ivins from time to time conveyed various parcels of land on both sides of the street, but so described it in the deeds as to retain title to the fee of the street.