Opinion
June, 1931.
Appeal from Supreme Court, Oneida County.
Present — Sears, P.J., Crouch, Taylor, Thompson and Crosby, JJ.
While the resolution of the common council was not artistically drawn, its meaning was clear and included authority to the legal officer of the city to make the application for abandonment under section 18 of the Condemnation Law. Application under that section should ordinarily be granted. ( N.Y., O. W. Ry. Co. v. Nelson, 152 App. Div. 245.) We find in the record before us no sufficient reason to warrant, in the discretion of the court, a denial of the application. All concur, except Thompson and Crosby, JJ., who dissent and vote for affirmance on the grounds: 1. That the resolution or ordinance passed by the common council of the city of Utica on July 14, 1930, was insufficient to authorize the motion to abandon. 2. That, under section 18 of the Condemnation Law, permission to abandon the proceeding is a matter for the discretion of the Special Term, and that, under all the facts and circumstances of this case, there was no abuse of discretion.
Order reversed on the facts, without costs of this appeal to either party, and matter remitted to the Special Term with directions to grant the order upon terms, including reimbursement to the defendant of all expenses and upon payment of costs, the amount to be determined by the Special Term. [ 141 Misc. 15.]