110 N.Y.S. 46 | N.Y. Sup. Ct. | 1908
This matter comes now before the court upon a motion for an order confirming the report of the commissioners in the above entitled matter.
‘ On ¡November 25, 1907, there was presented to the undersigned, a justice of the Supreme Court, the petition herein and a stipulation of Beecher S. Olother, attorney for the petitioners, and J. E. Sennett, attorney for Patrick Sullivan, the owner of the lands over which the proposed improvement of the highway is to extend. The stipulation recites that Patrick Sullivan accepts due and personal service of the within petition and waives the service and publication of notice as provided by the statute and further recites that it is stipulated that the petition may he presented to C. C. Van Kirk, justice of the Supreme Court, at his adjourned term to be held in Glens Falls on the 25th day of ¡November, 1907.
In pursuance of siich stipulation, and in the presence of the two attorneys aforesaid, an order was signed appointing Bussell A. Little, John Hogan and II. Prior King, the commissioners agreed upon by the parties, to ascertain and determine the compensation to he made to the owner and to all persons in any manner interested in the real estate described in the petition. On the 30th day of ¡November, 1907, Messrs. Olother, attorney for the petitioners, and Sen-net, attorney for Patrick Sullivan, entered into a stipulation
Dpon this motion to confirm the report, the wife of Patrick Sullivan appears specially by her- attorney to take objections to the proceedings. She is not made a party to the proceeding and has not been served with notice herein. She does not ask to be made a party to the proceeding. Mot being made a party, if she has any rights and interests in the real estate in question, they cannot be taken in this proceeding.
Under Moore v. Mayor, 8 N. Y. 110, 112; People v. Adirondack R. R. Co., 160 id. 245, and Matter of Brooklyn Bridge, 75 Hun, 558, I do not think that, in any event, the wife is a necessary party to the proceeding. If the wife has any interest in the real estate, in her inchoate right of dower, it can be amply protected. Code Civ. Pro. §§ 452, 3378. The objections upon her behalf are therefore overruled.
Mrs. Breason, of Argyle, admitted to have a mortgage upon the premises in question, on which there is about $500 unpaid, also appears specially and objects to the jurisdiction of the court, and states that she has had no notice whatever of the proceedings. She is not made a party; she does not ask tó be brought in as a party. Provision can be made in the order for saving her rights and interests without prejudice to her. The court may make the order asked for as between the parties before it. Code Civ. Pro. § 452. Mot
Mr. Patterson also appears specially for himself and for Mr. Patrick Sullivan, the defendant, as taxpayers, but they do not ask to come in to be made defendants. It is not pos: sible that all the taxpayers in the district to be assessed to raise the amount of the damages fixed in this proceeding are necessary parties in a proceeding to acquire these lands. Hor does it appear that the finding is contrary to the interests of the taxpayers; there is no complaint made to the court that the damages are excessive.
Patrick .Sullivan, as .defendant, appears by Mr. Sennet and Mr. Patterson. So far as the objections apply to the regularity of the proceedings, the defendant Sullivan cannot be heard. Under the stipulations which he has made, he has bound himself to recognize the regularity of the proceedings and the sufficiency of the petition up to the time that the matter was submitted to the commissioners appointed by the court. In open court he appeared when the petition was presented and asked for the appointment of the commissioners stipulated by the parties. The order has been made and those commissioners have acted. He cannot now be heard to attack the regularity of the proceedings or the airfflciency of the petition. Hor can he be heard to object that all interested parties are not joined. He should have raised the objection by demurrer or answer,. He knew of the interest of his wife and of the mortgagee. It is true that the notices required by the statute have not been given, but they have been waived (County of Orange v. Ellsworth, 98 App. Div. 275) ; and, if,it' was the purpose of the defendant to have raised any question as to the sufficiency of the petition, it should have been done in court at the time the petition was presented and before the order appointing the commissioners was made. Ho answer being filed, no issue on
And he must be deemed to have waived, both by his appearance and his stipulation, any question as to the sufficiency of the notice and any objection as to the sufficiency of the petition. County of Orange v. Ellsworth, 98 App. Div. 275.
It seems to me without question that these lands may be taken for this highway and their condemnation could not be defeated. Since the rights of all claimants can be fully protected in the order, no sufficient cause is shown why the order of confirmation should not be made.
Because the wife of defendant Sullivan and the mortgagee make conflicting claims to the award, or a part of it, the money should be paid into court. Pecksport C. R. Co. v. West, 20 App. Div. 636; Code Civ. Pro. § 3378.
The order confirming the report of the commissioners should be made.
Motion • granted.