176 A.D. 717 | N.Y. App. Div. | 1917
The defendant Filomena Cipolla appeals from the decision and judgment of condemnation entered herein July 7, 1916.
In December, 1915, a proceeding was brought by the Bronx Parkway Commission pursuant to chapter 594 of the Laws of 1907, as amended by chapter 757 of the Laws of 1913, to acquire by condemnation for the purposes of a public park fifty-eight parcels of land situated along and near the Bronx river between Bronx park and the city line. Among these parcels was one owned by the defendant Filomena Cipolla. The proceeding was begun on January 3, 1916, by the service of a petition and notice upon the defendant Cipolla and the owners of the other parcels sought to be condemned. The defendant Cipolla served an answer on February 23, 1916. Thereafter on March 1, 1916, an order was made severing the proceeding as to Cipolla and her premises designated as sheet 2, parcel 12, on the revised map of the Commission. The issues raised by the petition and answer were tried on March 3, 1916, and on July 7, 1916, judgment was entered by the court at Special Term decreeing condemnation of the defendant’s premises, appointing commissioners of appraisal and awarding costs to the petitioner against the defendant. It is from this judgment that the defendant appeals.
Section 11 of chapter 594 of the Laws of 1907 authorizes the petitioners to agree with the owner of any real estate necessary to be acquired as to the amount to be paid an owner as compensation for the taking of his real estate. Then section 13 provides: “ In the event that the said Bronx Parkway Commission shall be unable to agree with the owners of lands described herein, or deemed necessary by said Commissioners,
deemed necessary for the purposes of this act shall be acquired by condemnation proceedings instituted by said Bronx Parkway Commission, in the manner provided by the Code of Civil Procedure for the condemnation of real property for like purposes, and in the name of the Bronx Parkway Commission; and it shall thereupon be lawful for said Commissioners to apply to the Supreme Court in the county where such lands are located, for the appointment of commissioners of estimate and assessment * * (See, also, Laws of 1916, chap. 599, amdg. said § 13.) The provision of the Code of Civil Procedure referred to in the act is section 3360, which provides that the proceeding shall be instituted by petition, which must allege among other things that the petitioner has been unable t© agree with the owner of the property for its purchase “and the reason of such inability.” The petitioner here has alleged in its petition its inability to agree with the defendant as to the amount to be paid as compensation for the taking of her property, that it has made diligent efforts to do so, and, as a reason for this inability, it alleges that the owner is unwilling and refuses to sell the property for a reasonable and fair price. The defendant in her answer denied this allegation of the petition and set up as a separate defense that the parties were and are able to agree; that on January 11, 1915, they had actually agreed upon the sum of $73,000 as compensation to be paid her for her real estate; that she is ready, able and willing to convey and otherwise comply with all the terms and conditions on her part to be performed, but that the petitioner refuses to carry out its agreement or to make payment of said sum of $73,000, and she asks that the complaint be dismissed.
At the trial the petitioner called an employee of the Commission and proved through him that on December 30, 1915, he served on the defendant a written offer to purchase the real estate in question for $56,000 signed by the Commission and dated December 29, 1915. The secretary of the Commission then testified that this offer to purchase was prepared under his supervision and that since the offer was served the Commission had received no word or information from the defendant that the price offered was acceptable to her. The petitioner
It remains to inquire how the character of the offer to purchase is affected by previous negotiations between the parties. It appears from the cross-examination of plaintiff’s witness, Downer, that on January 11, 1915, as the result of a year’s negotiations the Commission and the owner came to an agreerhent to purchase for the sum of $73,000, subject, however, to the approval of the board of estimate and apportionment of the city of New York and the board of supervisors of Westchester county as to the price. The Commission had the power to make this agreement without reference to the approval of these
Under the circumstances I think the petitioner has failed to show that a bona fide effort to agree upon a price was made,.
Clarke, P. J., Scott, Smith and Page, JJ., concurred.
Judgment reversed, with costs, and petition dismissed, with costs. Order to be settled on notice.