In re Metropolitan Elevated Railway Co. — 22 N.Y.S. 128

Majority

p. 128

In re METROPOLITAN EL. RY. CO. In re JONES et al.

(Supreme Court, General Term, First Department.

February 17, 1893.)

Headnote

Condemnation Proceedings—Commissioners’ Report—Motion to Confirm..

Laws 1850, c. 140, § 17, providing that, on the report being made by the-commissioners of appraisal in proceedings to condemn land for railroad, purposes, “the company shall give notice” to the parties to be affected, for the confirmation of such report, etc., was enacted for the purpose of enforcing diligence on the part of the corporation, and to insure to property own

p. 129

ers notice of an application for confirmation of a report, and does not limit the right of such application to the company, but such motion may be made by the owners.

Appeal from special term, New York county.

Application by the Metropolitan Elevated Railway Company to condemn certain real estate in the city of New York. From an order granting a motion by the property owners to confirm the report of the commissioners awarding the damages for the appropriation of Parcel No. 7, forming a part of the premises known as “Nos. 31 and 33 Vesey Street,” in said city, the railway company appeals.

Affirmed.

The contention of the appellant is that the property owners were unauthorized to move for a confirmation of the report, and that a confirmation, on their motion, against the objection of the petitioner, was erroneous. It is claimed that only the company could make such motion, and to support this position it relies on the statute of 1850, cited in the opinion.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Davies & Rapallo, (Julien T. Davies and William H. Godden, of counsel,) for appellant.

Robert S. Rudd and James M. Hunt, for respondents.

This proceeding was begun in September, 1889, and is not affected by chapter 23 of the Code of Civil Procedure, which went into effect May 1, 1890. The court, having jurisdiction of the proceedings, could entertain any motion by either party necessary to give efficacy thereto. The provisions of section 17, e. 140, of the Laws of 1850,^[1] in regard to the company giving notice of confirmation, were enacted for the purpose of enforcing diligence upon the part of the corporation in bringing the proceedings to a conclusion, and to insure to the parties against whom the company was moving notice of the application for confirmation of a report. The company could not discontinue the proceeding without an application to the court, the court fixing such terms as it might deem proper as a condition of such discontinuance. It follows, therefore, that, unless the company desired to discontinue, the court might, upon motion of the property holder, give efficacy to the report of the commissioners by the confirmation of the same. The order appealed from should be affirmed, with SIR costs and disbursements.

1 Laws 1850, c. 140, § 17, relating to the confirmation of the report of the commissioners of appraisal in proceedings to condemn land for railroad purposes, is. as follows: “Seel 17. On such report being made by said commissioners the company shall give notice to the parties, or their attorneys, to be affected by the-proceedings, according to the rules and practice of said court, at a general or special term thereof, for the confirmation of such report; and the court shalli thereupon confirm such report, and shall make an order containing a recital of" the substance of the proceedings in the matter of the appraisal, and a description! of the real estate appraised, for which compensation is to be made; and shall also, direct to whom the money is to be paid, or in what bank, and in what manner, it. shall be deposited by the company. ”