In re Metropolitan Elevated Railway Co. — 22 N.Y.S. 298

Majority

p. 298

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

(Supreme Court, General Term, First Department.

February 17, 1893.)

Headnote

Condemnation Proceedings—Award op Commissioners—Review.

The proceedings before commissioners appointed to appraise damages to abutting property, caused by the construction of an elevated railway on a street, cannot be reviewed on appeal from an order confirming the report, but an appeal must be taken from the award of the commissioners, as provided by Laws 1850, c. 140, § 18.

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 confirming the report of commissioners appraising, at six cents, the damages. to parcel No. 54, being 729, 731, 733, and 735 Sixth avenue, Julian B. Hart, John I. Hart, and Mary H. Dessau, as trustees under the will of Benjamin I. Hart, deceased, appeal.

Affirmed.

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

Morrison & Kennedy, for appellants.

Davies, Short & Townsend, (Edward C. James, Julien T. Davies, and Sidney Smith, of counsel,) for respondent.

This proceeding ivas begun October 21, 1889, and is not affected by chapter 23 of the Code of Civil Procedure, which went into effect May 1, 1890. The appeal from the order of confirmation does not bring before this court for review any errors committed before the commissioners who were appointed to assess the damages. In order to raise these questions, the award must be appealed from as prescribed by section 18, c. 140, of the Laws of 1850.^[1] We think, therefore, that the order appealed from should be affirmed, with $10 costs and disbursements.

1 The material portion of Laws 1850, c. 140, 8 18, is as follows: “Within twenty days after the confirmation of the report of the commissioners, as provided for in the seventeenth section of this act, either party may appeal by notice in writing to the other to the supreme court from the appraisal and report of the commissioners. Such appeal shall be heard by the supreme court at any general or special term. * * * On hearing of such appeal, the court may direct a new appraisal before the same or new commissioners. The second report shall be final and conclusive on all parties interested.