In re the Metropolitan Elevated Railway Co. — 51 N.Y. St. Rep. 460

Majority

p. 460

In the Matter of the Application of The Metropolitan Elevated Railway Co., App’lt. In re Jones et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed February 17, 1893.)

Headnote

Condemnation proceedings — Railroad—Motion to confirm report.

In proceedings to condemn land for railroad purposes, a motion to confirm the report of the commissioners of appraisal may be made by the property owners. The provision of § 17 of the general railroad act as to the company giving notice of confirmation was intended only to enforce diligence on the part of the company in bringing the proceedings to a conclusion and insure to the property owners notice of the application for confirmation.

Appeal from an order confirming the report of the commissioners of appraisal.

Appellant contends that the court had no jurisdiction to grant the motion made by the property owners to confirm the report of the commissioners, nor to grant the motion, in that the property owners had not acquired such vested rights under the statute as entitled them to confirm the report and thereby move the proceeding.

Davies & Rapallo (Julien T. Davies and William H Golden, of counsel), for app’lt; Robert S. Rudd and James M. Hunt, for resp’ts.

This proceeding was begun in September, 1889, and is not affected by chap. 28 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 § 17, chap. 140, of the Laws of 1850, 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 bolder, give efficacy to the report of the commissioners by the confirmation of the same.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

■Yan Brunt, P. J., O’Brien and Follett, JJ., concur.