In re Hemenway — 118 N.Y.S. 931

Majority

p. 931

In re HEMENWAY.

(Supreme Court, Appellate Division, Third Department.

September 15, 1909.)

Headnote

1. Schools and School Districts (§ 69^[2] )—Location oh Schoolhouse Site —Written Resolution—Necessity.

The requirement of Laws 1894, pp. 1214, 1219, c. 556, whether the district be a new one and the schoolhouse site designated in pursuance of title 7, art 1, § 14, subd. 7, or whether the district be an old one to which title 7, art. 2, § 19, is applicable, that a new site be chosen by a written resolution, in which it is described by metes and bounds, is not met by an entry in the minutes of the clerk.

[Ed. Note.—For other cases, see Schools and School Districts, Cent. Dig. § 174; Dec. Dig. § 69.^[2] ]

p. 932

2. Schools and School Districts (§ 69^[2] )—Schoolhouse Site—Consent of School Commissioner.

The consent of the school commissioner to a new schoolhouse site, required by Daws 1894, p. 1219, c. 556, tit. 7, art.. 2, § 19, is a consent to a change to a specific location; and letters indicating an opinion by him that a change was desirable are insufficient.

[Ed. Note.—For other cases, see Schools and School Districts, Cent. Dig. § 174; Dec. Dig. § 69.^[2] ]

3., Schools and School Districts (§ 69^[2] )—Schoolhouse Site—Consent of School Commissioner.

Where, though a school district had been altered nine years before, at least two school commissioners had been elected since that time, it cannot be fairly claimed to be a new and not an old district, within Laws 1894, p. 1219, c. 556, tit. 7, art. 2, § 19, requiring the consent of the school commissioner in an old district to a change in the schoolhouse site.

4. Eminent Domain (§ 251^[2] )—Proceedings to Condemn—Right to Review.

A proceeding to condemn land' for a schoolhouse site cannot be sustained, on appeal of the landowner, on the ground that his remedy is an appeal under the school law (Laws 1894, p. 1183, c. 556), where the statutory requirements to authorize a condemnation have not been met.

[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 251.^[2] ]

Application by Calvin T. Hemenway as sole trustee, etc., to condemn for a school site lands owned by John M. Schoonmaker and others. From the final order and 'judgment for the trustee, Schoonmaker and others appeal.

Reversed, and new trial granted.

Argued before SMITH, P. J., and 'CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Henry D. Merchant (Roland B. Sanford, of counsel), for appellants.

Noah H. Browning, for respondent.

In the notice of appeal the appellant has given notice of his intention to review the judgment of condemnation. His contention is that the conditions prescribed by the law to authorize the condemnation of his property have not been complied with. By chapter 556, pp. 1214, 1219, of the Laws of 1894; whether the district be a new one and the site be designated in pursuance of subdivision 7, § 14, tit. 7, art. 1, of that chapter, or whether the district be an old one to which section 19, art. 2, tit. 7, is applicable, the requirement of the law is that the new site must be chosen at a special meeting called for such purpose, and must be chosen by a written resolution, in which the proposed site must be described by metes and bounds. It seems clear that no such proceeding was taken at the special meeting, at which the defendant’s property is claimed to have been designated as the site for the schoolhouse. A notice was sent out, which contained a description of three sites which were to be considered at the special meeting. There was no written resolution offered for the adoption of the site in question. The only evidence of its adoption is the entry in the minutes of the clerk. If such an entry were all that the Legislature deemed necessary, the requirement of the statute that the site be chosen by a written resolution would hardly have been made.

p. 933

Nor has the respondent here the consent in writing of the school commissioner, as required by section 19 of the statute. Some letters were produced which indicate an opinion on the part of the school commissioner that a change was desirable. The consent required by the statute, however, is a written consent to a change to a specific location. No such consent appears in the papers.

To avoid the force of this objection it is claimed that this is a new district, and therefore the consent of the school commissioner is not required. It is true that the district was altered some nine years before. At least two school commissioners have been elected since that time, and this cannot be claimed within a fair construction of the statute, to be the designation of the site for a new district.

, The respondent cannot sustain this proceeding upon the ground that the remedy of the landowner is an appeal under the school law. In order to take appellant’s property by right of eminent domain, - the school authorities must comply with the conditions the statute prescribes, and until then the landowner may legally object to the condemnation of his property.

Without considering other objections made to this judgment, the final order and judgment, for the reasons stated, must be reversed, the referee discharged, and a new trial granted, with costs to appellant ta abide the event.

Final order and judgment reversed on law and facts, referee discharged, and new trial granted, with costs to appellant to abide event. All concur.