In re the Manhattan Railway Co. — 52 N.Y. St. Rep. 44

Majority

p. 44

In the Matter of the Application of The Manhattan Railway Co., Resp't, to Acquire Title to Land of John L. Stroub, App'lt.

(Supreme Court, General Term, First Department,

Filed March 17, 1893.)

Headnote

1. Condemnation proceedings—Appointment op commissioners—Correction op omissions.

Where the court in adjudging condemnation of property for the use of a railroad fails to appoint commissioners of appraisal or to fix the time for the first meeting, it has power under § 724 of the Code to supply such omission by order on proper application and proper notice.

2. Same—Time op meeting.

A direction that the first meeting of the commissioners take place on a date five days from that of the order and three days after its entry is improper, as it does not give the necessary time for notice to those who have appeared, as required by § 8869.

Appeal from order appointing commissioners of appraisal in proceedings to acquire title to land.

Smith & Perkins (Edward C. Perkins, of counsel), for app'lt; Davies, Short & Townsend (Alexander S. Lyman and Julien T. Davies, of counsel), for resp't.

Upon an examination of the sections of the Code under which this proceeding was taken, it will be noticed that the proceeding was before the court, and not before a judge, and that by § 3369 it is provided what the judgment is to contain which is to be entered pursuant to the direction of the court or referee before whom the issues have been tried. This section provides that if the decision is in favor of the plaintiff, or if no answer has been interposed, and it appears from the petition th,at the plaintiff is entitled to the relief demanded, judgment shall be entered adjudging that the condemnation of the property described is necessary for the public use, and that the plaintiff is entitled to take and hold the property for the public use specified, upon making compensation therefor, and that the court shall thereupon appoint three disinterested and competent freeholders, etc. It is apparent from this language of the section that it was the intention of the legislature that the court, by the judgment which was to be entered upon the decision of the court or referee, should appoint the commis

p. 45

sioners, and also should by that judgment fix the time and place for the first meeting of the commissioners; but if the court omitted, in the entering of the judgment, to do any of these things in the judgment directed to be entered, the applicant is not without remedy. Because by § 3368 it is provided that the provisions of title 1 of chapter 8 of this act shall also apply to proceedings had under this title. Title 1 of chapter 8 relates to mistakes, omissions, defects and irregularities; and by § 724 of the Code, which is included in that title, the court may supply an omission to any proceeding; and where a proceeding taken by a party fails to conform to a provision of this act, the court may, in like manner and upon like terms, permit an amendment thereof to conform it to the provision. Therefore, the court having failed to appoint the commissioners by the judgment, as contemplated by | 3369, such omission, upon proper application, and upon proper notice, may be supplied, which is what was done in the case at bar.

The court also attempted to supply the other omission, viz., the fixing of the time and place for the first meeting of the commissioners. The order appointing the commissioners was dated February 23, entered February 25, and directs that the first meeting of the commissioners be held on February 28, 1893; and, by so doing, did not give necessary time in order that the last clause of § 3369 could be applied, which provides that, if a trial has been had, at least eight days notice of such appointment must be given to all defendants who have appeared, the appointment referred to being the appointment of the commissioners, and of the time and place of the first hearing. The time fixed by this clause of the section the court had no power to shorten.

We think, therefore, that the order appealed from should be modified by reversing that part of the order which fixed the time for the first meeting of the commissioners, with leave to apply at the special term for the supplying of the omission which the reversal of that portion of the order would leave, without costs to either party.

O’Brien and Follett, JJ., concur.