§ 3359. When proceedings prescribed in this title to be taken.— Whenever any person is authorized to acquire title to real property, for a public use by condemnation the proceeding for that purpose shall be taken in the manner prescribed in this title.

The propriety of taking private property for a public use, is not a judicial question, but, one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, proceeding in such a manner and form as it may prescribe. People ex rel. Herrick v. Smith, 21 N. Y., 595.

Neither a private or municipal corporation can under a general power to take lands for a public use, take from another corporation having the like power, lands or property held by it for a public purpose pursuant to its charter. Matter of Rochester Water Commissioners, 66 N. Y., 413. See also, to same effect, Prospect Park & C. I. R. R. Co. v. Williamson, 91 N. Y, 552.

Statutes delegating the right of eminent domain to railroad and other corporations, being in derogation of common right, are not to be extended by implication, and must be strictly complied with. Yet they are not to be construed so literally, as to defeat the evident purposes of the legislature. N. Y. & II. R. R. Co. v. Kip, 46 N. Y., 546.

3360. Proceedings to be commenced by petition; what to contain. The proceeding shall be instituted by the presentation of a petition by the plaintiff to the supreme court, setting forth the following facts:

1. His name, place of residence, and the business in which engaged; if a corporation or joint-stock association, whether foreign or domestic, its principal place of business within the state, the names and places of residence of its principal officers, and of its directors, trustees or board of managers, as the case may be, and the object or purpose of its incorporation or association; if a political division of the state, the names and places of residence of its principal officers; and if the state, or any commission or board of managers or trustees in charge or having control of any of the charitable or other institutions of the state, the name, place of residence of the officer acting in its or their behalf in the proceedings. [AM'D BY CH. 589 OF 1896. In effect May 12, 1896.]

2 A specific description of the property to be condemned, and its location by metes and bounds, with reasonable certainty.

3. The public use for which the property is required and a concise statement of the facts showing the necessity of its acquisition for such use.

4. The names and places of residence of the owners of the property; if an infant, the name and place of residence of his general guardian, if he has one; if not, the name and place of residence of the person with whom he resides; if a lunatic, idiot, or habitual drunkard, the name and place of residence of his committee or trustee, if he has one; if not, the name and place of residence of the person with whom he resides. If a non-resident, having an agent or attorney residing in the state authorized to contract for the sale of the property, the name and place of residence of such agent or attorney; if the name or place of residence of any owner can not after diligent inquiry be ascertained, it may be so stated with a specific statement of the extent of the inquiry which has been made.

5. That the plaintiff has been unable to agree with the owner of the property for its purchase and the reason of such inability.

6. The value of the property to be condemned.

7. A statement that it is the intention of the plaintiff, in good faith, to complete the work or improvement, for which the property is to be condemned; and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding.

8. A demand for relief, that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaint

iff is entitled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners for the property so taken.

When private property is to be taken for public purposes, facts necessary to give the court or off er jurisdiction must appear in the petition, for it is upon that alone that jurisdiction depends. Matter of Marsh, 71 N. Y., 315; rev'g 10 Hun, 49.

The supreme court has the power to entertain a proceeding on the petition of a railway, to condemn lands of the state under water. Matter of N. Y. Cable Co., 104 N. Y., 1, 43. It is no objection to proceedings under the act that there are other lands in the same vicinity equally well adapted for the purposes which possibly might be acquired by purchase. N. Y. & H. R. R. Co. v. Kip, 46 Ñ. Y., 546.

The reasons of the inability to agree must be stated, that the court may determine their suficiency, and also that the owner of the land may negative or disprove them, as the reasons why agreement cannot be had may be various, and a petition which fails to state the reasons for disagreement is defective. Matter of Marsh, 71 N. Y., 316.

The exercise of the power being in derogation of individual right, allowed only when the necessity clearly appears, and the proposed use is clearly embraced within the legitimate objects of the power. In re Staten Island Rapid Transit Co., 103 N. Y., 251.

A defective description cannot be remedied by reference to a description in a deed. Extreme accuracy is essential for the protection of the rights of all the parties, and a failure to comply with the statute must lead to difficulty and embarrassment. Matter of N. Y. C. & H. R. R. R. Co., 70 N. Y., 191.

In Matter of Surburban Ropid Transit Co., 38 Hun, 553, it was held, that the court had power to amend a defect in the petition by proof presented upon the hearing.

One petition to acquire the land of several owners is but one proceeding, and requires one appeal and one allowance of costs. Matter of Prospect Park, etc., R. R. Co., 67 N. Y., 371; affirming 8 Hun, 30.

In order to sustain proceedings by which a body corporate claims the power to exercise the right of eminent domain, it is not sufficient that it be a corporation de facto. It must be be a corporation de jure. Matter of N. Y. Cable Co., 104 N. Y,, 1, 43.

If the petition does not show the facts required by statute to be stated, the objection may be disposed of before trial. Matter of N. Y., W. S. & B. R. R. Co., 64 How., 217. Owner entitled to notice and hearing. Stuart v. Palmer, 74 N. Y., 183.

§ 3361. Notice to be annexed to petition; upon whom served.— There must be annexed to the petition a notice of the time and place at which it will be presented to a special term of the supreme court, held in the judicial district where the property or some portion of it is situated, and a copy of the petition and notice must be served upon all the owners of the property at least eight days prior to its presentation.

All notices and hearings that may tend to give the party to be affected any semblance of benefit must be carefully observed. People v. Kniskern, 54 N. Y., 52.

§ 3362. Petition and notice; how served.-Service of the petition and notice must be made in the same manner as the service of a summons in an action in the supreme court is required to be made, and all the provisions of articles one and two of title one of chapter five of this act, which relate to the service of a summons, either personally or in any other way, and the mode of proving service, shall apply to the service of the petition and notice. If the defendant has an agent or attorney residing in this state, authorized to contract for the sale of the real property described in the petition, service upon such agent or attorney will be sufficient service upon such defendant. In case the defendant is an infant of the age of fourteen years or upwards, a copy of the petition and notice shall also be served upon his general guardian, if he has one; if not, upon the person with whom he resides

§ 3363. Appearance of defendant infant, idiot, lunatic or habitual drunkard.If a defendant is an infant, idiot, lunatic or habitual drunkard, it shall be the duty of his general guardian, committee or trustee, if he has one, to appear for him upon the presentation of the petition and attend to his interests, and in case he has none, or in case his general guardian, committee or trustee fails to appear for him, the court shall, upon the presentation of the petition and notice, with proof of service, without further notice, appoint a guardian ad litem for such defendant, whose duty it shall be to appear for him and attend to his interests in the proceeding, and, if deemed necessary to protect his rights, the court may require a general guardian, committee or trustee, or a guardian ad litem to give security in such sum and with such sureties as the court may approve. If a service other than personal has been made upon any defendant, and he does not appear upon the presentation of the petition, the court shall appoint some competent attorney to appear for him and attend to his interests in the proceeding.

§ 3364. Appearance of parties. The provisions of law and of the rules and practice of the court, relating to the appearance of parties in person or by attorney in actions in the supreme court, shall apply to the proceeding from and after the service of the petition, and all subsequent orders, notices and papers may be served upon the attorney appearing and upon a guardian ad litem in the same manner and with the same effect as the service of an action in the supreme court may be made.

papers in

A party, by putting in a general appearance and proceeding without objection, submits himself to the jurisdiction of the court, and cannot afterward raise objection to the sufficiency of the verifiication to the petition. Lackawanna, etc., R. R. Co. v. Scheu, 33 Hun, 148.

If the petition does not state the facts required in the petition to be stated, an objection in that regard can be raised preliminarily in effect by way of de urrer, and should be disposed of before proceeding to the merits. Matter of N. Y., W. S. & B. R. R. Co., 64 How. 217. The appearance of an attorney for the land owner, when a petition for the appointment of commiss oners is brought on for hearing, gives jurisdiction, and cures an omission from the petition, such as the omission to state the residence of owners. Matter of Ro hester, Hornells. til e, etc., Ry. Co., 19 Abb. N. C., 421.

3365. Answer; what to contain.-Upon presentation of the petition and notice with proof of service thereof, an owner of the property may appear and interpose an answer, which must contain a general or specific denial of each material allegation of the petition controverted by him, or of any knowl edge or information thereof sufficient to form a belief, or a statement of new matter constituting a defense to the proceeding.

If by non-performance of a condition of its charter, the corporation has forfeited or lost its corporate rights and powers the fact may be averred by any one whose land or property is sought to be appropriated in answer to the application. Mutter of Brooklyn, etc., R. R. Co., 72 N. Y., 245.

It is well settled in this state, that the mere fact that the land proposed to be taken for a public use is not needed for the present and immediate purpose of the petitioning party, is not necessarily a defense to a proceeding to condemn it. Matt r of Staten Island Rapid Transi Co., 103 N. Y., 251.

§ 3366. Petition or answer must be verified.-A petition or answer must be verified, and the provisions of this act relating to the form and contents of the verification of pleadings in courts of record, and the persons by whom it may be made, shall apply to the verification.

3367. Trial of Issues.-The court shall try any issue raised by the petition and answer at such time and place as it may direct, or it may order the same to be referred to a referee to hear and determine, and upon such trial the court or referee shall file a decision in writing, or deliver the same to the attorney for the prevailing party, within twenty days after the final submis sion of the proofs and allegations of the parties, and the provisions of this act relating to the form and contents of decisions upon the trial of issues of fact by the court or a referee, and to making and filing exceptions thereto, and the making and settlement of a case for the review thereof upon appeal, and to the proceedings which may be had in case such decision is not filed or delivered within the time herein required, and to the powers of the court and referee upon such trial, shall be applicable to a trial and decision under this title.

A denial of the intention of a railroad company to, in good faith, construct and finish its road, made by the owner of the property sought to be taken, raises an issue for trial before commissioners can be appointed, and puts the burden of proof upon the company. Matter of Staten Island Rapid Transit R. R., 20 Week. Dig., 15.

§ 3368. Certain provisions made applicable.-The provisions of title one of chapter eight of this act shall also apply to proceedings had under this title.

§ 3369. Judgment shall be entered pursuant to the direction of the court or referee in the decision filed. If in favor of the defendant the petition shall be dismissed, with costs to be taxed by the clerk at the same rates as are allowed, of course, to a defendant prevailing in an action in the supreme court, including the allowances for proceedings before and after notice of trial. If the decision is in favor of the plaintiff, or if no answer has been interposed and it appears from the petition that he is entitled to the relief demanded, judgment shall be entered, adjudging that the condemnation of the real 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 the court shall thereupon appoint three disinterested and competent freeholders, residents of the judicial district embracing the county where the real property, or scme part of it, is situated, or of some county adjoining such judicial district, commissioners to ascertain the compensation to be made to the owners for the property to be taken for the public use specified, and fix the time and place for the first meeting of the commissioners. Provided, however, that in any such proceeding instituted within the first or second judicial district, such commissioners shall be residents of the county where the real property, or some part of it, is situated, or of some adjoining county. If a trial has been had, at least eight days' notice of such appointment must be given to all the defendants who have appeared. The parties may waive, in writing, the provisions of this section as to the residence of the commissioners, and in that case they may be residents of any county in the state. Where owners of separate properties are joined in the same proceeding, or separate properties of the same owner are to be condemned, more than one set of commissioners may be appointed. [AM'D BY CH. 530 OF 1895. In effect May 23, 1895.] Inability to procure the assent of the landholders is the only prerequisite under the statute to the appointment of commis-ioners. An application for the appointment of commissioners should not be denied because other companies having coincident routes have refused their consent. Matter of Thirty-fou th Street R. R. Co., 102 N. Y., 343.

Where commissioners were appointed on consent of parties, and it subsequently appeared one of them was not a freeholder, it was held that, in the absence of allegations of improper con lact on his part, the court properly denied a motion, made by one of the parties who had consented to his appointment, to have the report set aside and a new commissioner appointed. N. Y., W. S. & B. R R. Co., 35 Hun, 575.

The appoinment of a son of a commissioner a station agent by the company pending the proceedings is ground for setting aside an appraisal N. Y, W. S. & B. R. R. Čo, ▾

Tit. 1, Ch. 23.

§ 3370. Proceedings of commissioners.-The commissioners shall take and subscribe the constitutional oath of office. Any of them may issue subpoenas and administer oaths to witnesses; a majority of them may adjourn the proceedings before them, from time to time in their discretion. Whenever they meet, except by appointment of the court or pursuant to adjournment, they shall cause at least eight days' notice of such meeting to e given to the defendants who have appeared, or their agents or attorneys. They shall view the premises described in the petition, and hear the proof and allegations of the parties, and reduce the testimony taken by them, if any, to writing, and after the testimony in each case is closed, they, or a majority of them, all being present, shall, without unnecessary delay ascertain and determine the compensation which ought justly to be made by the plaintiff to the owners of the property appraised by them; and, in fixing the amount of such compensation, they shall not make any allowance or deduction on account of any real or supposed benefits which the owners may derive from the public use for which the property is to be taken, or the construction of any proposed improvement connected with such public use. But in case the plaintiff is a railroad corporation and such real property shall belong to any other railroad corporation, the commissioners on fixing the amount of such compensation, shall fix the same at its fair value for railroad purposes. They shall make a report of their proceedings to the supreme court with the minutes of the testimony taken by them, if any; and they shall each be entitled to six dollars for services for every day they are actually engaged in the performance of their duties, and their necessary expenses, to be paid by the plaintiff; provided that in proceedings within the counties of New York and Kings such commissioners shall be entitled to such additional compensation not exceeding twenty-five dollars for every such day, as may be awarded by the court. [AM'D BY CH. 384 OF 1898. September 1, 1898.] In effect

The commissioners have no power to make any awards for the loss of an established business located on the land taken, nor for machinery thereon as su h, though an allowance for depreciation of its value by removal is proper. Hun, 280. Matter of Department of Public Parks, 53

It is not error for the commissioners to receive and act upon testimony as to the value of the property for park purposes or villa sites. Ib.

The corporation acquires an absolute right to the lands divested of any inchoate right of dower existing in the wife. Moore v. The Mayor of New York, 8 N. Y., 110.

The commissioners should determine the compensation to be made to a widow who has dower or life estate in lands taken. compensation to be made to the mortgagee. Matter of William Street, 19 Wend., 678, and also the The true inquiry is, what is the fair marketable value of the whole property; what will be Master of John Street, Ib., 659. the fair marketable value of the property not taken? The difference is the amount of the damages. Matter of N. Y. & W. R. R. Co., 27 Hun, 151.

An appraisal will not be set aside as excessive unless the excess is plain and palp ble on the evidence. Matter of L. & W. R. R. Co., 27 Hun, 116.

The opinions of witnesses that the railroads will frighten horses, or the necessity of deviat ing the line of a turnpike, or the cost of diversion or that a bridge ought to be built, or the amount of damages a turnpike company will sustain by reason of the crossing of its read, are said to be inadmissible. Troy & B. R. R. Co. v. Northern Turnpike Co., 16 Barb., 100. In Trustees of College Point v. Dennett, 5 T. & C., 217, it was held upon an appraisal of a pond that the measure of damages was not limited to its use as a mill or ice-pond, but the owner was entitled to receive its value for any use.

The commissioners must appraise the land at its actual value; the cannot make a reservation of easements and privileges to the owner. Hill v. M. & H. R. R. Co., 7 N. Y., 152.

But see, however, Ex parte II. C. & R. R. Co., 65 How., 133, where it is held that a company may petition for the appraisement only of the land required for its road.

It is competent to show, where lands is taken for a specific use, as a railroad, that the land not taken is depreciated in value by the use of the land taken and if that depreciation consists in the imposition of expense upon the owner of such lands, what that expense will be. Matter of Bloomfield, etc., Gas L. Co. v. Calkins, 1 T. & C., 549.

The owner should be awarded the market price of the land already taken, and in addition thereto the depreciation in the market value of the lands remaining. as compared with their 700f