90 N.Y.S. 576 | N.Y. App. Div. | 1904
Chapter 240 of the Laws of 1901, entitled “ An act supplementary to chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, entitled 6 An act to provide for the improvement of public highways/ relative to securing the requisite right of way by the boards of supervisors of counties in which public highways are improved pursuant to said chapter,” is challenged upon this appeal as being in violation of the Constitutions of this State and of the United States. (U. S. Const. 5th amendt.; Id. 14th amendt. § 1; State Const, art. 1, §§ 1, 6.) This act provides in section 2 (as amd. by Laws of 1902, chap. 510) that the board of supervisors of a county in which the highways are to be improved under the provisions of chapter 115 of the Laws of 1898, as amended, may provide for the purchase of any right of way necessary to such work, provided that in no single instance more than $200 shall be thus expended unless the written approval of the county judge and county treasurer shall first be obtained, in which case no more than $1,000 shall be thus expended. Section 3 provides as follows: “ In case the board of supervisors may not be able to acquire the land "by pur
The county of Orange, through its board of supervisors, has sought to take the lands of the defendant under the provisions of this act. It presented a petition to the County Court, and upon the day named in the published notice for the presentation of such petition the defendant Ellsworth appeared by his attorney and filed written objections to the proceeding, without suggesting any limitation upon the appearance, so far as appears from the record, or by anything now urged upon the consideration of this court. By this general appearance the court unquestionably gained jurisdiction of the person of the defendant (Heed v. Chilson, 142 N. Y. 152,155, and authorities there cited), who must be deemed to have waived any question of the sufficiency of the notice published ; and if the objections then urged are untenable, and the statute is not open to the objection of unconstitutionality, the appeal must fail and the order be affirmed,
The objections stated, upon which no ruling appears to have been asked for or made, are as follows: “ I. Chapter 240, Laws of 1901, and the amendments thereto by Chapter 510, Laws of 1902, are unconstitutional. A. The Statute fails to provide for personal service of notice of application, or for a proper publication of notice of application. B. That the owners, whose lands are sought to be acquired herein, are not properly before the Court, and any and all proceedings taken herein are wholly inoperative to cut off defendants’ interests, and are null and void. C. That no provision is made in said Act for denying or controverting the petition or for making any pleading or defense; and that defendant land owner is not permitted on the return of the petition, or at any subsequent time, to litigate the question of the right to maintain the proceeding or to raise the issue of the use and necessity requiring the condemnation of the lands herein. D. That the lands in question are not sought for public purposes. II. That the petition herein is fatally defective, in that it does not state the specific purposes for which the lands in question are to be used. III. The petition fails to allege that this proceeding was authorized by the Board of Supervisors as prescribed by Chapter 240, Laws of 1901, and the amendments thereto, but, on the other hand, it affirmatively appears that it was only authorized by resolution of a sub-committee thereof, and such failure renders this proceeding void. IY. The verification is defective in that it does not state authority to make such verification, nor does it anywhere appear in the petition that such verification is authorized.”
The objections under clauses A and B are disposed of by'the fact that the defendant voluntarily appeared and submitted to the jurisdiction, of the court. If the defendant is correct in his assumptions under clause C, that there is no provision for denying or controverting the petition or making any pleading or defense, and no opportunity to litigate the right of the plaintiff to maintain the proceeding, etc., a more serious question is presented, and the defendant’s objections having been ignored, we are disposed to consider this question. It is important at the outset to determine the question whether the defendant is denied these rights, for
If, under the rules to which we have called attention, the provisions of the Condemnation Law are permitted to supplement and explain those of chapter 240 of the Laws of 1901 (as amd. supra), and the two acts, standing together, provide the defendant an opportunity to litigate any question relating to his property rights, it is clear that this court is not called upon to declare the latter act unconstitutional. (People v. Rosenberg, 138 N. Y. 410, 415, and authorities there cited; People v. Lochmer, 177 id. 145, 158, 159, and authorities there cited.) That it was the purpose of the Legislature, in enacting the Condemnation Law, to supplement all laws in reference to the taking of private property for public purposes is clearly evidenced by its language, for it is provided that “ whenever any person ” (“person” being defined to include natural persons, “ the State and a political division thereof,” Code Civ. Proc. § 3358) “ 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.” (Code
The petition in the present proceeding conforms to the requirements of section 3360 of the Code of Civil Procedure, as well as to some of the provisions of section 3 of chapter 240 of the Laws of 1901, and if the defendant had interposed an answer he would have been entitled under the law to a trial of any of the questions which would have been open to any citizen whose property was being taken under the power of eminent domain. The law provided due process ; it opened the way to him to litigate any issue which he might have desired to raise, and having neglected to answer, he must be deemed to have waived any of the issues which he now seeks to review upon this appeal.
It may be proper to point out that the objection that the petition fails to allege that this proceeding was authorized by the board of supervisors, etc., was one which could have been raised by answer, but that it is not tenable as a preliminary objection, as the petition recites, in substance in the language of section 3360 of the Code of Civil Procedure “that all the preliminary steps required by law
The commissioners viewed the premises, and it not appearing that they were governed by any erroneous theory, we are of opinion that the judgment, confirming the report of the commissioners, should be affirmed, with costs.
The order appealed from should be affirmed, with costs.
All concurred.
Order of the County Court of Orange county affirmed, with costs.