The Erie and Central New York Railway Company, Appellant, v. Amanda Welch and Others, Respondents

The Erie and Central New York Railway Company, Appellant, v. Amanda Welch and Others, Respondents. Condemnation law — the petition must state the intention to complete the work — oral objection, good. A petition made by a railivay corporation, upon an application for the appointment of commissioners to ascertain and fix the compensation of the owners of land sought to be condemned under the right of eminent domain, is defective Avhere it does not contain, as required by subdivision 7 of section 3360 of the Code of Civil Procedure, “ a statement that it is the intention of the plaintiff in good faith to complete the work or improvement for which the property is to be condemned.” Objections may be taken orally to such a petition. Appeal by the plaintiff, The Erie and Central Netv York Railway Company, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the ■county of Cortland on the 7th day of November, 1895, denying its motion for the appointment of commissioners to ascertain and fix the compensation to be made to the OAvners of certain lands in said petition described, to be taken by the plaintiff under proceedings to ■condemn the same by the right of eminent domain. Irving II. Palmer, for the appellant. I. II. Maynard, for the respondents. [MAJORITY — Per Curiam :] Per Curiam : The plaintiff, at a Special Term of this court held in Broome county on the 29tli day of October, 1895, ujion the petition and notice of motion, a copy of which is contained in the papers submitted to us, moved for the condemnation of the lands described in said petition and for the appointment of commissioners to ascertain and fix the compensation to be made therefor. The defendants appeared and opposed • said motion. No answer was served, nor does it appear on what grounds the defendants objected to the application. The petition was defective in not containing “ a statement that it is the intention of the plaintiff in good faith to complete the work or improvement for which the property is to be condemned,” as required by subdivision 7 of section 3360 of the Code of Civil Procedure. The allegation so omitted was material and necessary to be stated to entitle the plaintiff to the relief demanded. In the Matter of Metropolitan Transit Co. (111 N. Y. 588), where a like application, under chapter 140 of the Laws of 1850, was under consideration, it was held that “ as a condition upon which the court could be asked to intervene in its favor to enable it to acquire lands and street rights, the company was obliged to show, under oath, that it is its ‘ intention, * * * in good faith, to construct and finish a railroad from and to the places named * * * in its articles of association.’ ” -(See, also, Matter of the Application of the Metropolitan El. R. Co. v. Dominick et al., 27 N. Y. St. Repr. 576; Rochester Ry. Co. v. Robinson, 133 N. Y. 242.) The petition being thus defective, and it appearing that the defendants objected to the granting of the application of plaintiff for the condemnation of the premises in question and the appointment of commissioners to ascertain and fix the compensation to be made therefor, we are unable to determine that the court below was in error in making the order from which the appeal is taken. If there had been no appearance by defendants, the court could properly have denied the application on the insufficient petition presented. The papers do not show that the defendants waived the objections to the defective j>etition on which the plaintiff moved. We are also of the opinion that under the provisions of the “ Condemnation Law,” where the petition on which the plaintiff moves fails to comply with the provisions of section 3360 of the Code of Civil Procedure, the court may properly sustain oral objections to the granting of the application for condemnation and the appointment of commissioners. The view above taken renders it unnecessary for us to consider the other questions discussed by the learned counsel for the respective parties. The order should be affirmed, with costs and disbursements. Present — Landon, Putnam, Herriok and Merwin, JJ.; Parker, P. L, not sitting. Order affirmed, with costs and disbursements.