Majority
Headnote
Action by the Cortland Home Telephone Company against William R. Huntington, as sole executor of William R. Randall, deceased, and others, to condemn a right to erect telephone poles over defendant’s lands in the highway. From an order dismissing the action, plaintiff appeals. Reversed. Bronson & Davis (Rowland L. Davis, of counsel), for appellant. J. & T. E. Courtney (O. U. Kellogg, of counsel), for respondents.We are of the opinion that no reason appears from the record before us why the issues raised by the answer to the petition in this case should not have been either tried by the court or sent to a referee for trial, as required by section 3367 of the Code of Civil Procedure. There is no attempt by this petition to condemn the fee in the land described. It is simply the easement or right to erect and maintain its poles over the strip of land described that is sought, and “the property to be condemned” is, we think, sufficiently described. The petition seems to substantially comply with the requirements of section 3360 of the Code, and the petitioner was entitled to a trial thereon. Whether further proceedings in the action enjoining the petitioner from erecting its poles, which is referred to in such petition, should be stayed or not, is a matter in the discretion of the court at special term, and we are not called upon to express any opinion thereon. The order is reversed, with $10 costs and disbursements, and the appellant may apply at special term, on notice, for a trial of the issues or for a reference of the same.