In re Meagher — 35 Misc. 601

Majority

p. 601

Matter of the Application of James H. Meagher, Commissioner of Public Works of the City of Syracuse, to Acquire Title for, in Behalf of and in the Name of the City of Syracuse, to Certain Real Property Situated in Said City, for Public Park Purposes.

(Supreme Court, Onondaga Special Term,

July, 1901.)

Headnote

Condemnation — Petition insufficiently showing the “ necessity ” of acquiring lands for a public park — Code C. P., §§ 3360, subd. 3; 3369.

Under the Code provisions requiring the petition in condemnation proceedings to allege “ 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 ”, allegations, upon the part of the city, that the property to be taken is required for public park purposes and that the people in that section of the city are desirous of a place to beautify their section and a place for recreation, are insufficient to authorize condemnation, even where no answer has been interposed.

The petition should also show the situation of the neighborhood, the extent of the population there, the fact, if it be so, that there is no other or sufficient place for the recreation of .the people of the section and such other facts as may bear upon the necessity of the use for public purposes of the land proposed to be taken.

Proceedings for the condemnation of certain real estate, situate in the city of Syracuse for the purpose of a public park.

p. 602

M. Z. Haven, Corporation Counsel, for petitioner.

William F. Rafferty, for Matilda D. Wells and others, owners.

This is an application in behalf of the petitioner acting for the city of Syracuse for a judgment providing for the condemnation of certain real estate in the city of Syracuse for the purpose of a public park, and for the appointment of commissioners, etc. Ho defense or answer has been interposed by the owners of the property, Matilda D. and J. Emmet Wells, or other opposition made to the granting of the. application. The statute (Code C. P., § 3369) provides that, under such circumstances, if “ it appears from the petition ” that the petitioner 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, etc. The statute further provides (Code C. P., § 3360, subd. 3) that the petition, to be presented upon such an application, shall set out 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.” The petition presented in this case does not, in my opinion, set out sufficient facts to authorize the court to give the judgment asked for. The only allegation upon this subject is “ The public use for which the property is required'is for public park purposes. That the people in that section of the city are desirous of a place to beautify their section and a place for recreation.” In my judgment, further facts than this should be set forth in the petition, showing the situation of the neighborhood in which the land sought to be condemned is situated, the extent of the population there, the fact, if it so be, that there is no other sufficient or proper place for the necessary and proper recreation and enjoyment of the people living in that section, and such other facts as may bear upon the necessity of the use of this land for public purposes, for that is the test which the statute applies.

In accordance with.these views, an amended petition may be filed, setting out further and additional facts as required by the statute, or, if preferred by the parties, this court will appoint a referee to take evidence and report upon the subject.

Ordered accordingly.