New York, Ontario and Western Railway Company, Appellant, v. Malcolm S. Crawford and Others, Respondents

Third Department, November, 1910. New York, Ontario and Western Railway Company, Appellant, v. Malcolm S. Crawford and Others, Respondents. Appeal by the plaintiff from a judgment in favor of the defendants, entered ■in Delaware county clerk’s officé on the 27th of December, 1909, upon the report of a referee. [MAJORITY — Per Curiam :] Per Curiam : The depot and the fence standing for many years on the east opposite it fairly locate the plaintiff’s right of way. The premises sought to be acquired are described as contiguous and adjacent to said railroad, and it is diffi cult to see how it can be determined that they are not contiguous and adjacent. This part of the description necessarily controls the location. A reasonable effort to acquire the property failed. The judgment is, therefore, reversed upon the law and the facts, the referee discharged and a new trial granted, with costs to the appellant to abide the event. All concurred; Sewell, J.', not sitting. Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellant to abide event.