136 N.Y.S. 514 | N.Y. App. Div. | 1912
We think that there is no force in the defendants’ contention that the motion to abandon and discontinue the condemnation proceeding was not made in time. The notice of motion to discontinue such proceeding was made within the thirty days specified in the statute and it was made returnable at the first Special Term of the Supreme Court held in the county of Oswego at which such motion could be heard. It seems to us that the provision of the statute is complied with
The more important question is whether the Special Term in its discretion was justified in denying plaintiff’s motion for permission to discontinue and abandon the proceedings herein. The provisions of the statute giving the plaintiff in condemnation proceedings the right to discontinue and abandon are very broad.
Section 3374 provides: "Upon the application of the plaintiff to be made at any time after the presentation of the petition and before the expiration of thirty days after the entry of the final order, upon eight days’ notice of motion to all other parties to the proceeding who have appeared therein or upon an order to show cause, the court may in its discretion and for good cause shown authorize and direct the abandonment and discontinuance of the proceeding upon payment of the fees and expenses, if any, of the commissioners, and the costs and expenses directed to be paid in such final order, if such final order shall have been entered, and upon such other terms and conditions as the court may prescribe; and upon the entry of the order granting such application and upon compliance with the terms and conditions therein prescribed, payment of the amount awarded for compensation, if such compensation shall have been theretofore awarded, shall not be enforced, but in such case if such abandonment and discontinuance of the proceeding be directed upon the application of the plaintiff, the order granting such application, if permitting a renewal of such proceedings, shall provide that proceedings to acquire title to such lands or any part thereof shall not be renewed by the plaintiff without a tender or deposit in court of the amount of the award and interest thereon.”
By the provisions of such statute the court had the right to
We conclude that under the statute the application of the plaintiff for permission to discontinue and abandon the proceeding was made in time, and that such application should be granted upon such terms and conditions as under all the circumstances would be just and equitable, and that the matter should be remitted to the Special Term to fix and determine the conditions under which the plaintiff may discontinue and abandon such proceeding under the provisions of the statute to which attention has been called.
It follows, therefore, that the order appealed from should be reversed, with costs to the appellant.
All concurred, except Spring and Robson, JJ., who dissented upon the ground that the court at Special Term properly exercised its discretion.
Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term for its further action thereon in accordance with the opinion.