Morgan v. New York & Massachusetts R Co. — 28 N.Y. St. Rep. 86

Majority

p. 86

Mary L. Morgan, Resp’t, v. The New York & Massachusetts R Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.

Headnote

Eminent domain—Commissioners’ report—Record.

It is sufficient if the order of confirmation of the report of the commissioners of appraisal be recorded in full in the office of the county clerk of the county in which the land is situated ; it is not necessary that it he recorded in the hook of conveyances.

Appeal from judgment in favor of plaintiff.

Action to recover the amount of an appraisal for the interest of plaintiff in lands taken by the defendant for railroad purposes.

At the close of the testimony the defendant moved to dismiss the complaint on- the ground that no certified copy of the order of confirmation had been recorded at full length in the office of the county clerk, or notice thereof given to the defendant; that plaintiff’s claim had not become a debt against defendant or the defendant’s right to abandon the proceedings extinguished at the commencement of the action. The motion was denied and the court directed a verdict for plaintiff.

The contention as to the non-recording of the order proceeds upon the provisions of § 18 of the general railroad act. 3 R. S., 8th ed., 1745, § 18.

Homer A. Nelson and 0. D. M. Baker, for app’lt; Horace D. Hu/cut, for resp’t.

The appeal in this action presents the same questions substantially as those raised in the case of John R. Lent against the same defendant, decided at the present term of the court, ante, 82. Both actions were upon awards of commissioners of appraisal in the same proceedings, but in this action there was an answer to the complaint, and a trial before a jury, at which a verdict was directed for the plaintiff by the trial judge.

The questions of law involved in this case are the same as those in the Lent case, and the objection respecting the recording of the order of confirmation of the report of the commissioners of appraisal is a question of fact founded upon an erroneous construction of the statute which requires the order to be recorded. The contention of the defendant is that the order should be recorded in the book of conveyances, but such a construction would render a compliance with the statute impossible in those counties having a register’s office where all conveyances are required to be recorded. The order was recorded in the office of the county clerk of Dutchess county, and we think the statute received compliance in that respect.

There being no question of fact involved upon the trial, the trial judge was justified in directing a verdict.

The judgment should be affirmed, with costs.

Pbatt, J., concurs; Babnabd, P. J., not sitting.