Brooklyn Union Elevated Railroad v. Valance — 108 N.Y.S. 157

Majority

p. 157

BROOKLYN UNION ELEVATED R. CO. v. VALANCE et al.

(Supreme Court, Appellate Division, Second Department.

January 10, 1908.)

Headnote

Eminent Domain—Condemnation Pboceedings—Amendment—Description of Land.

Under Code Civ. Proc. §§ 723, 3368, providing that in condemnation proceedings the court may amend any pleading or other proceeding to correct a mistake, the court may, after judgment by default, while the commissioners are still sitting, correct a clerical error in the petition and judgment in the description of the land by metes and bounds.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 523.]

Appeal from Special Term, Kings County.

Condemnation proceedings by the Brooklyn Union Elevated Railroad Company against Sarah U. Valance and others. From an order correcting the description of land in the petition and judgment, defendants Rowlands and others appeal. Affirmed.

Argued before WOODWARD, JENKS, RICH, MIDLER, and -GAYNOR, JJ.

Almeth W. Hoff (Michael J. Joyce, on the -brief), for appellants.

Chas. D. Woody, for respondent.

The respondent has a retaining wall three feet wide •at the base and two feet at the top along its sunken railroad right of way against the appellants’ land. The base of such wall was one foot over on the appellants’ land, and this proceeding was begun to acquire the strip encroached upon. After appearing, the appellants allowed judgment to be taken by default. A motion was afterwards made by the respondent while the commissioners were still sitting to correct the description in the petition and judgment. The introductory words of such description, and the map referred to in it, which exhibited the wall, showed the strip one foot wide to be taken, but in the description by metes and bounds the lines were not run correctly. The correction asked for was only of a clerical error, and the court was authorized to make it.- Code Civ. Proc. §§ 723, 3368.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.