23 N.Y.S. 609 | N.Y. Sup. Ct. | 1893
(This proceeding was instituted by the respondent, under chapter 23, tit. 1, of the Code of Civil Procedure, for the condemnation of certain property as necessary for the prosecution of its business. Upon presentation of the petition, with notice attached, to the court, the appellant objected to the jurisdiction of the court, upon the ground that the notice of the presentation of the petition was insufficient and defective, which objection being overruled, the appellant demurred to said petition upon the ground of its insufficiency, which demurrer was overruled, and an order made appointing commissioners of appraisal, and from such order this appeal is taken.
It is urged upon the part- of the respondent that this appeal is premature, and that no appeal lies from any order made in the progress of the proceeding until the final order or judgment is entered, referring to section 3375, which ingrafts upon this proceeding the pernicious practice, first injected into our system of procedure by the Code of Civil Procedure, of allowing all proceedings antecedent to the judgment to be reviewed upon appeal from the judgment, if the appellant states in his notice that the same will be brought up for review. The sections under which this proceeding is instituted are part of the Code of Civil Procedure, and the provisions of such Code seem to be applicable thereto, so far as they are not inconsistent. Under the definitions of the Code, this proceeding seems to be a special proceeding, (section 3334,) and by
It is further claimed by the respondent that, by the so-called demurrer to the sufficiency of the petition, all objection to the sufficiency of the notice is waived. We find, in the regulation of the practice in these proceedings, no provision for the filing of what is technically called a “demurrer.” In fact, the grounds stated in the so-called demurrer were nothing but additional objections to the jurisdiction of the court because of the insufficiency of the allegations of the petition, and nothing was waived. Indeed, under the system inaugurated by this Code, it is difficult to see how any of these objections can be waived by any future proceeding, as the order overruling them may be reviewed upon appeal from the final order or judgment; and, if reviewable upon the final, order or judgment, such order overruling them may certainly be reviewed upon a direct appeal therefrom. The section of the Code (section 3361) requires that 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, etc. The notice in the case at bar reads: “Please to take notice that we shall apply to the special term of the supreme court of New York on Thursday, the 16th day of March,” etc. This, clearly, was not a compliance with the law. Ho place whatever was mentioned. The term, “special term of the supreme court of New York,” was just as applicable to every special term in the state of New York, wherever held, as to the term held in the county of New York. If it be said that there could be no mistake or misapprehension, because the application was required to be made in the judicial district where the land is situated, it seems to be sufficient to say that the legislature did not appear to think that this was sufficient, but required the party calling upon the court to exercise this sovereign power to be precise and definite in Ms notice as to the place of presentation of his petition. These proceedings tending to deprive a citizen of Ms property against his will, the statute authorizing the same must be strictly pursued, or jurisdiction will not be acquired. It would seem, therefore, that, the notice of presentation of petition not complying with the statute, the court did not acquire jurisdiction, and the order appealed from should be reversed, with $10 costs and disbursements, and the proceeding dismissed, with costs. All concur.