Village of St. Johnsville v. Smith — 61 A.D. 380

Majority

p. 380

Village of St. Johnsville, Plaintiff, v. Daniel Smith and Others, Defendants.

Headnote

Appeal, by a defendant in condemnation proceedings — it lies only after- Hie order confirming the report of commissioners has been made.

The defendants in a condemnation proceeding cannot appeal from the interlocutory judgment authorizing the condemnation of the property sought to be acquired, hut may, under section 3375 of the Code of Civil Procedure, review such judgment on an appeal taken from the order confirming the report of the commissioners appointed to ascertain the compensation to he paid by the. plaintiff.

Motion- hy the plaintiff, the Village of St. Johns ville, to dismiss an appeal taken hy the defendants from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Cortland on the 30th day of August, 1897, upon the report of a referee condemning the real property and water rights described in the petition.

Plaintiff instituted proceedings to condemn certain lands and water rights of the defendants for the purpose of enlarging its waterworks. Issues were raised by the service of an answer by defendants, and such issues having been tried before a referee, the proceedings resulted in a judgment for the condemnation of such property. From such' judgment an appeal has been taken and is now pending-in this court.

The plaintiff now moves to dismiss such appeal on the ground that one does not lie by the defendants from such an interlocutory judgment.

George C. Butler. [.Andrew J. Nellis of counsel], for the plaintiff..

GlarTb L. Jordcm, for the defendants.

We are of the opinion that this motion must be granted. The provisions of the Condemnation Law (Code Civ. Proc. §§ 3357-3384). clearly point out how appeals may be taken in those proceedings. The first question to be determined in such proceedings is whether the plaintiff is entitled to condemn the property which it desires.

p. 381

to acquire. To that end it presents a petition setting forth its claim. Its averments may be met by an answer.. In the event that defendant succeeds after trial upon such answer, judgment is entered against the plaintiff, and in that event it would end the proceedings. Therefore, by section 3376 of such law an appeal is expressly given to the plaintiff to review that judgment. If, however, upon such trial, or upon a default by defendant, judgment on its petition is •entered for the plaintiff a different provision is made by which the ■defendant may review such result.

No appeal directly from that judgment is anywhere given him. It is evidently an interlocutory judgment which does not end the proceeding. It determines that the plaintiff is entitled to take the property, upon making compensation therefor, and the court is directed, upon the entry of such a judgment, to appoint commissioners to ascertain the amount to be so paid (§ 3369), and it is only after the ascertainment of such compensation and payment thereof that such judgment can be enforced. (§ 3373.) Having this in view, section 3375 of that law provides that after the order confirming the report •of the commissioners to ascertain the compensation to be paid has been made, the defendant may appeal, and by the appeal then taken lie may, if he desires, review not only the proceedings of the commissioners, but also the judgment and all proceedings antecedent thereto.

Here is expressly pointed out the method by which the defendant may appeal from the judgment which determines that the plaintiff is ■entitled to condemn his lands. He is not given the right to at once appeal from that judgment, as the plaintiff is, but he must wait until the amount to be paid to him has been fixed and such judgment is in a condition to be enforced. Then all his rights in the matter have been fully determined by the court and he is then allowed to review the whole proceeding in one appeal.

It is hardly necessary to speculate why the defendant is not allowed to settle by an appeal the plaintiff’s right to condemn before entering upon an inquiry as to the compensation to be paid. Several answers might be suggested. It is sufficient, however, that by the provision of the law it is very clear that his right to so appeal is postponed until after the final order is entered which adjusts all his rights in the matter.

p. 382

The scheme of the law is a complete one. It provides for appeals as well as for all other proceedings to acquire property hy condemnation. We need not look into the provisions controlling special proceedings generally, because in this law itself we'find the practice laid down which controls the question now before us. Thjs con-, elusion is sustained by the decision in Erie R. R. Co. v. Steward ( 59 App. Div. 187 ).

The appeal is, therefore, dismissed, witli costs.

All concurred.

Appeal dismissed, with ten dollars .costs and disbursements.

Cases cited

Erie Railroad v. Steward 59 App. Div. 187 N.Y. App. Div. 1901-03-08 p. 382