In re New York, Westchester & Boston Railway Co.

Majority

p. 935

In the Matter of the Application of New York, Westchester and Boston Railway Company, Appellant, to Acquire Title to Lands of Otto Wagner and Others, Respondents.

Headnote

Railroad — eminent domain — election of property owner.

Appeal by the New York, Westchester and Boston Railway Company from an order of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 16th day of February, 1918.

It was the landowner’s duty to know what his legal rights were at the time of the appraisal. If he took the position that the property severed was farm land and that he was entitled to a crossing, and induced or suffered the commissioners to err, he is not entitled now to a new trial upon the ground that he or they were mistaken. If, however, he took the position that such land was not farm land, and allowed or persuaded the commissioners to accept the theory that he was entitled to a farm crossing, he was seeking or content to obtain what did not belong to him. If there was a stipulation that he should have a farm crossing, he should have it. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Jenks, P. J., Thomas, Mills and Kelly, JJ., concurred; Putnam, J., voted to reverse on the ground that there is pending an appeal from the mandamus proceeding. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.