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CHAPTER XXIII.

(ADDED BY CHAP. 95, LAWS OF 1890.)

SUPPLEMENTAL PROVISIONS.

TITLE I. PROCEEDINGS FOR THE CONDEMNATION OF REAL PROPERTY. TITLE II. PROCEEDINGS FOR THE SALE OF CORPORATE REAL PROPERTY.

TITLE I.

Proceedings for the condemnation of real property.

SECTION 3357. Title.

3358. Terms defined.

3359. When proceedings prescribed in this title to be taken.

3.60. Proceedings to be commenced by petition; what to contain.

3361. Notice to be annexed to petition; upon whom served.

3362. Petition and novice; how served.

3363. Appear nce of defendant infant, idiot, lunatic or habitual drunkard.
3364. Appearance of parties.

3365. Answer; what to contain.

3366. Petition or answer must be verified.

3367. Trial of issues.

3368. Certain provisions made applicable.

3369. Judgment what to contain; costs when to defendant; commissioners.

3370. Proceedings of commissioners.

3371. Confirming or setting aside report; deposit when payment.

3372. Offer to compromise; amount of costs; additional allowance.

3373. Judgment how enforced; when to deliver possession of premises and when

writ of assistance to issue.

3374. Abandonment of proceeding.

3375. Appeal from final order; stay.

3376. Appeal from judgment by plaintiff.

3377. New appraisai; when.

3378. Conflicting claimants.

3379. Possession of property on giving security.

3380. When possession of real property given immediately.

3381. Notice of pendency of action to be filed.

3382. Practice in cases not provided for.

3383. Repealing clause.

3384. When act to take effect.

§ 3357. Title. This title shall be known as the condemnation law.

§ 3358. Terms defined. The term "person," when used herein, includes a corporation, joint stock association, the state and a political division thereof, as well as a natural person; the term "real property," any right, interest or easement therein or appurtenance thereto; and the term "owner," all persons having any estate, interest, or easement in the property to be taken, or any lien, charge, or incumbrance thereon. The person instituting the proceedings shall be termed the plaintiff; and the person against whom the proceeding is brought, the defendant.

The right of a mill owner to use the waters of a stream as a propelling power at his mill, is an incorporeal hereditament connected with the land and may be acquired by a waterworks company. Stamford Water Co. v. Stanley, 39 Hun, 424.

3359. When proceedings prescribed in this title to be taken.— Whenever any person is authorized to acquire title to real property, for a publie use by condemnation the proceeding for that purpose sliall be taken in the manner prescribed in this title.

The propriety of taking private property for a public use, is not a judicial question, but one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, proceeding in such a manner and form as it may prescribe. People ex rel. Herrick v. Smith, 21 N. Y., 595.

Neither a private or municipal corporation can under a general power to take lands for a public use, take from another corporation having the like power, lands or property held br it for a public purpose pursuant to its charter. Matter of Rochester Water Commissioner8, 66 N. Y., 413. See also, to same effect, Prospect Park & C. I. R. R. Co. v. Williamson, 91 N. Y., 552.

Statutes delegating the right of eminent domain to railroad and other corporations, being in derogation of common right, are not to be extended by implication, and must be strictly complied with. Yet they are not to be construed so literally, as to defeat the evident purposes of the legislature. N. Y. & H. R. R. Co. v. Kip, 46 N. Y., 546.

3360. Proceedings to be commenced by petition; what to contain. The proceeding shall be instituted by the presentation of a petition by the plaintiff to the supreme court, setting forth the following facts:

1. His name, place of residence, and the business in which engaged; if a corporation or joint stock association, whether foreign or domestic, its principal place of business within the state, the names and places of residence of its principal officers, and of its directors, trustees or board of managers, as the case may be, and the object or purpose of its incorporation or associations*if a political division of the state, the names and places of residence of its principal officers; and if the state, the name and place of residence of the officer acting in its behalf in the proceeding.

2. A specific description of the property to be condemned, and its location, by metes and bounds, with reasonable certainty.

3. The public use for which the property is required and a concise statement of the facts showing the necessity of its acquisition for such use.

4. The names and places of residence of the owners of the property; if an infant, the name and place of residence of his general guardian, if he has one; if not, the name and place of residence of the person with whom he resides; if a lunatic, idiot, or habitual drunkard, the name and place of residence of his committee or trustee, if he has one; if not, the name and place of residence of the person with whom he resides. If a non-resident, having an agent or attorney residing in the state authorized to contract for the sale of the property, the name and place of residence of such agent or attorney; if the name or place of residence of any owner can not after diligent inquiry be ascertained, it may be so stated with a specific statement of the extent of the inquiry which has been made.

5. That the plaintiff has been unable to agree with the owner of the property for its purchase and the reason of such inability.

6. The value of the property to be condemned.

7. A statement that it is the intention of the plaintiff, in good faith, to complete the work or improvement, for which the property is to be condemned : and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding.

8. A demand for relief, that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaint

iff is entitled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners for the property so taken.

When private property is to be taken for public purposes, facts necessary to give the court or officer jurisdiction must appear in the petition, for it is upon that alone that jurisdiction depends. Matter of Marsh, 71 N. Y., 315; rev'g 10 Hun, 49.

The supreme court has the power to entertain a proceeding on the petition of a railway, to condemn lands of the state under water. Matter of N. Y. Cable Co., 104 N. Y., 1, 43. It is no objection to proceedings under the act that there are other lands in the same vicin ity equally well adapted for the purposes which possibly might be acquired by purchase. N. Y. & II. R. R. Co. v. Kip, 46 Ñ. Y., 546.

The reasons of the inability to agree must be stated, that the court may determine their sufliciency, and also that the owner of the land may negative or disprove them, as the reasons why agreement cannot be had may be various, and a petition which fails to state the reasons for disagreement is defective. Matter of Marsh, 71 Ñ. Y., 316.

The exercise of the power being in derogation of individual right, allowed only when the necessity clearly appears, and the proposed use is clearly embraced within the legitimate objects of the power. In re Staten Island Rapid Transit Co., 103 N. Y., 251.

A defective description cannot be remedied by reference to a description in a deed. Extreme accuracy is essential for the protection of the rights of all the parties, and a failure to comply with the statute must lead to difficulty and embarrassment. Matter of N. Y. C. & H. R. R. R. Co., 70 N. Y., 191.

In Mutter of Surburban Ropid Transit Co., 38 Hun, 553, it was held, that the court had power to amend a defect in the petition by proof presented upon the hearing.

One petition to acquire the land of several owners is but one proceeding, and requires one appeal and one allowance of costs. Matter of Prospect Park, etc., R. R. Co., 67 N. Y., 371; affirming 8 Hun, 30.

In order to sustain proceedings by which a body corporate claims the power to exercise the right of eminent domain, it is not sufficient that it be a corporation de facto. It must be be a corporation de jure. Matter of N. Y. Cable Co., 101 N. Y,, 1, 43.

If the petition does not show the facts required by statute to be stated, the objection may be disposed of before trial. Matter of N. Y., W. S. & B. R. R. Co., 64 How., 217. Owner entitled to notice and hearing. Stuart v. Palmer, 74 N. Y., 183.

§ 3361. Notice to be annexed to petition; upon whom served.— There must be annexed to the petition a notice of the time and place at which it will be presented to a special term of the supreme court, held in the judicial district where the property or some portion of it is situated, and a copy of the petition and notice must be served upon all the owners of the property at feast eight days prior to its presentation.

All notices and hearings that may tend to give the party to be affected any semblance of benefit must be carefully observed. People v. Kniskern, 54 N. Y., 53.

§ 3362. Petition and notice; how served.-Service of the petition and notice must be made in the same manner as the service of a summons in an action in the supreme court is required to be made, and all the provisions of articles one and two of title one of chapter five of this act, which relate to the service of a summons, either personally or in or in any other way, and the mode of proving service, shall apply to the service of the petition and notice. If the defendant has an agent or attorney residing in this state, authorized to contract for the sale of the real property described in the petition, service upon such agent or attorney will be sufficient service upon such de fendant. In case the defendant is an infant of the age of fourteen years or upwards, a copy of the petition and notice shall also be served upon his gen eral guardian, if he has one; if not, upon the person with whom he resides,

§ 3363. Appearance of defendant infant, idiot, lunatic or habitual drunkard. If a defendant is an infant, idiot, lunatic or habitual drunkard, it shall be the duty of his general guardian, committee or trustee, if he has one, to appear for him upon the presentation of the petition and attend to his interests, and in case he has none, or in case his general guardian, committee or trustee fails to appear for him, the court shall, upon the presentation of the petition and notice, with proof of service, without further notice, appoint a guardian ad litem for such defendant, whose duty it shall be to appear for him and attend to his interests in the proceeding, and, if deemed necessary to protect his rights, the court may require a general guardian, committee or trustee, or a guardian ad litem to give security in such sum and with such sureties as the court may approve. If a service other than personal has been made upon any defendant, and he does not appear upon the presentation of the petition, the court shall appoint some competent attorney to appear for him and attend to his interests in the proceeding.

§ 3364. Appearance of parties. The provisions of law and of the rules and practice of the court, relating to the appearance of parties in person or by attorney in actions in the supreme court, shall apply to the proceeding from and after the service of the petition, and all subsequent orders, notices and papers may be served upon the attorney appearing and upon a guardian ad litem in the same manner and with the same effect as the service of papers in an action in the supreme court may be made.

A party, by putting in a general appearance and proceeding without objection, submits kimse f to the jurisdiction of the court, and cannot afterward raise objec ion to the sufficiency of the verifiication to the petition. Lackawanna, etc., R. R. Co. v. Scheu, 33 Hun, 148..

If the petition does not state the facts required in the petition to be stated, an objection in that regard can be raised preliminarily in effect by way of de, urrer, and should be disposed of before proceeding to the merits. Matter of N. Y., W. S. & B. R. R. Co., 64 How. 217. The appearance of an attorney for the land owner, when a petition for the appointment of commissioners is brought on for hearing, gives jurisdiction, and cures an omission from the petition, such as the omission to state the residence of owners. Matter of Ro hester, Lornels. vile, etc., Ry. Co., 19 Abb. N. C., 421.

§ 3365. Answer; what to contain.-Upon presentation of the petition. and notice with proof of service thereof, an owner of the property may appear and interpose an answer, which must contain a general or specific denial of each material allegation of the petition controverted by him, or of any knowl edge or information thereof suflicient to form a belief, or a statement of new matter constituting a defense to the proceeding.

If by non-performance of a condition of its charter, the corporation has forfeited or lost its corporate rights and powers the fact may be aver ed by any one whose land or property is sought to be appropriated in answer to the application. Matter of Brooklyn, etc., R. I. Co.. 72 N. Y., 245.

It is well settled in this state, that the mere fact that the land proposed to be taken for a public use is not needed for the present and immediate pur; cse of the petitiouing party, is not necessarily a defense to a proceeding to condemn it. Matt r of Staten Island Rapid Transit Co., 103 N. Y., 51.

3366. Petition or answer must be verified.-A petition or answer must be verified, and the provisions of this act relating to the form and contents of the verification of pleadings in courts of record, and the persons by whom it may be made, shall apply to the verification.

§ 3367. Trial of issues. The court shall try any issue raised by the petition and answer at such time and place as it may direct, or it may order the same to be referred to a referee to hear and determine, and upon such trial the court or referee shall file a decision in writing, or deliver the same to the attorney for the prevailing party, within twenty days after the final submission of the proofs and allegations of the parties, and the provisions of this act relating to the form and contents of decisions upon the trial of issues of fact by the court or a referee, and to making and filing exceptions thereto, and the making and settlement of a case for the review thereof upon appeal, and to the proceedings which may be had in case such decision is not filed or delivered within the time herein required, and to the powers of the court and referee upon such trial, shall be applicable to a trial and decision under this

title.

A denial of the intention of a railroad company to, in good faith, construct and finish its road, made by the owner of the property sought to be taken, raises an issue for trial before commissioners can be appointed, and puts the burden of proof upon the company. Matter of staten Island Rapid Transit R. R., 20 Week. Dig., 15.

§ 3368. Certain provisions made applicable. The provisions of title one of chapter eight of this act shall also apply to proceedings had under this title.

§ 3369. Judgment shall be entered pursuant to the direction of the court or referee in the decision filed. If in favor of the defendant the petition shall be dismissed, with costs to be taxed by the clerk at the same rates as are allowed, of course, to a defendant prevailing in an action in the supreme court, including the allowances for proceedings before and after notice of trial. If the decision is in favor of the plaintiff, or if no answer has been interposed and it appears from the petition that he is entitled to the relief demanded, judgment shall be entered, adjudging that the condemnation of the real property described is necessary for the public use, and that the plaintiff is entitled to take and hold the property for the public use specified, upon making compensation therefor, and the court shall thereupon appoint three disinterested and competent freeholders, residents of the judicial district embracing the county where the real property, or some part of it, is situated, or of some county adjoining such judicial district, commissioners to ascertain the compensation to be made to the owners for the property to be taken for the public use specified, and fix the time and place for the first meeting of the commissioners. Provided, however, that in any such proceeding instituted within the first or second judicial district, such commissioners shall be residents of the county where the real property, or some part of it, is situated, or of some adjoining county. If a trial has been had, at least eight days' notice of such appointment must be given to all the defendants who have appeared. The parties may waive, in writing, the provisions of this section as to the residence of the commissioners, and in that case they may be residents of any county in the state. Where owners of separate properties are joined in the same proceeding, or separate properties of the same owner are to be condemned, more than one set of commissioners may be appointed. [AM'D BY CH. 530 OF 1895. In effect May 23, 1895.] Inability to procure the assent of the landholders is the only prerequisite under the statute to the appointment of commissioners. An application for the appointment of commissioners should not be denied because other companies having coincident routes have refused their consent. Matter of Thirty-fourth Street R. R. Co., 102 N. Y., 343.

Where commissioners were appointed on consent of parties, and it subsequently appeared one of them was not a freeholder, it was held that, in the absence of allegations of improper conduct on his part, the court properly denied a motion, made by one of the parties who had consented to his appointment, to have the report set aside and a new commissioner appointed. N. Y., W. S. & B. R. R. Co., 35 Hun, 575.

The appointment of a son of a commissioner a station agent by the company pending the proceedings is ground for setting aside an appraisal. Ñ. Y., W. S. & B. R. R. Co. v. Townsend, 36 Hun, 630.

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