Stillwater & Mechanicville Street Railway Co. v. Boston & Maine Railroad

Majority

p. 744

(67 App. Div. 367.)

STILLWATER & M. ST. RY. CO. v. BOSTON & M. R. R.

(Supreme Court, Appellate Division, Third Department.

December 31, 1901.)

Headnote

•Railroads—Intersections—Procedure — Appointment op Commissioners — Rioht op Appeal.

An order appointing commissioners under Railroad Law, § 12, providing that, when two railroad corporations cannot agree on the compensation for making intersections or connections, or on the grades or manner thereof, “the same shall be ascertained and determined by commissioners, * * * as is provided in the condemnation law,” is not ap

p. 745

pealable, an appeal in a condemnation proceeding being authorized only from a final order.

Appeal from special term.

Proceeding by the Stillwater & Mechanicville Street Railway Company against the Boston & Maine Railroad for the appointment of-commissioners under Railroad Law, § 12. From a judgment appointing the commissioners, defendant appeals. Appeal dismissed.

Argued before PARKER, P. J., and EDWARDS, SMITH, and; CHASE, JJ.

Thomas O’Connor (Edgar T. Bracket, of counsel), for the motion.

T. F. Hamilton, opposed.

By section 12 of the railroad law it is, in substance, provided that, if two railroad corporations cannot agree upon the-amount of compensation for making intersections or connections, or upon the grades or manner of such intersection, “the same shall be ascertained and determined by commissioners, * * * as is-provided in the condemnation law.” There is in the r.ailroad law no other provision for the procedure to determine such a controversy. By this provision the procedure under the condemnation, law seems to be added to this section for the purpose of determining the questions therein presented. As a part of that procedure, an appeal is authorized by a defendant only from a final order in the proceeding. See Village of St. Johnsville v. Smith, 61 App. Div. 380 , 70 N. Y. Supp. 880 . By section 3359 of the Code of Civil Procedure, which is a part of the condemnation law, it is provided, “Whenever any person is authorized to acquire title to real property, for a public use by condemnation, the proceedings for that purpose shall be taken in the manner prescribed in this title.” In the preceding section real property is defined as “any right, interest or easement therein or appurtenances thereto.” If, then, the procedure under the condemnation law has become a part of the railroad law by reference thereto in section 12, this appeal is unauthorized, and the-motion to dismiss the same should be granted.

Appeal dismissed, without costs. All concur.