Hilfinger v. State — 208 N.Y. 572

Majority

p. 572

Alexander Hilfinger et al., by Frederick Hilfinger, Their Guardian ad Litem, Appellants, v. The State of New York, Respondent.

Headnote

Hilfinger v. State of Hew TorJc, 151 App. Div. 946 , affirmed.

(Argued April 3, 1913;

decided April 22, 1913.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 15, 1912, affirming a judgment in favor of plaintiffs, but for less than the amount claimed, entered upon an award of the Court of Claims of damages arising from the permanent appropriation of lands for use of the barge canal.

N. P. Holmes and Hugo Hirsh for appellants.

Thomas Carmody, Attorney-General (Wilber W. Chambers of counsel), for respondent.

We are of opinion that where, as in the case of appropriation of lands by the state, the claimant is entitled under the Constitution to just compensation for the land taken from him, he cannot be required • by any rule of the court to go to the expense of presenting a duplicate of the map that has been served upon him; but this applies only to such cases, and not to cases where

p. 573

the party is entitled to present his claim against the state only hy authority of the legislature. Under the circumstances, therefore, as the rule that the claimant complied with was invalid, the. affirmance is without costs.

The judgment should-he affirmed, without costs.

Cullen, Ch. J., Willard Bartlett, Hiscock, Chase, Cuddeback and Miller, JJ., concur; Hogan, J., concurs in result.

Judgment affirmed.