( 278 U.S. 579.) While the validity of the determination of the Public Service Commission was being determined, this condemnation proceeding was gotten under way, and resulted in an interlocutory judgment of condemnation ( 125 Misc. 269). A hearing was had before the commissioners, and their award of $15,000 was confirmed at Special Term ( 133 Misc. 177). The present appeal is from the final order of confirmation of the award in the condemnation proceeding. There is also here an appeal from an order denying defendants' motion to recommit the matter to the commissioners in order to secure from them a further report "upon the question whether or not defendants' property had an enhanced market value by reason of its availability for use in connection with other property not owned by defendants."
The company, defendant here, already has prosecuted to judgment the appropriate condemnation proceeding. ( Matter of Niagara, Lockport Ontario Power Co., 125 Misc. 269.) While that judgment must be reviewed in the Fourth Department and while in the instant matter none of the relators' property has been or could be taken, still the relators claim that the entire act is unconstitutional; that in consequence these proceedings cannot be maintained and that the constitutional questions should be passed upon in this court.
This court is constrained to hold, therefore, that such filing is a jurisdictional requirement and that petitioners' failure to do so renders the proceedings fatally defective. ( Old Homestead Water Co. v. Treyz, 202 App. Div. 98, affd. 234 N.Y. 612; Matter of County of Erie v. LancasterDevelopment Co., supra; Matter of Niagara, Lockport Ontario Power Co., 125 Misc. 269.) In view of the above, it is unnecessary to pass upon the objections concerning the improper identification of the school district in the published notice.
In the case of eminent domain, when the state is not itself an actor, compensation for property taken, unless the amount is agreed upon, can be ascertained only through the aid of a court, but otherwise judicial action is unnecessary except as provided by statute. (State Const. art. 1, § 7.)" (Emphasis supplied: see, also, Zember v. State of New York, 5 Misc.2d 216, 218; Stuyvesant Housing Corp. v. Stuyvesant Town Corp., 183 Misc. 662; Matter of Niagara, Lockport Ontario Power Co., 125 Misc. 269; Matter of Gardiners Ave., Levittown, 136 N.Y.S.2d 166, 169; 29 C.J.S., Eminent Domain, § 4.) The court's determination herein is buttressed by the decision in Pennsylvania Hosp. v. City of Philadelphia ( 245 U.S. 20) where the facts are almost similar to those in the case at bar, the plaintiff in error, a charitable institution, was organized under the Laws of Pennsylvania and in 1841 it established on a tract of land in the city of Philadelphia a hospital for the care and cure of the insane.
( Matter of City of New York [ Ely Ave.], 217 N.Y. 45, 57.) Whether the use for which the property is authorized to be taken is a public use is a judicial question, but the question of the necessity of the taking for public use is exclusively a legislative one and the Legislature has the right to designate officers, bodies or tribunals to determine exigency or necessity. The decision of the Legislature or of its instrumentality is conclusive. ( Matter of City of Rochester v. Holden, 224 N.Y. 386, 391; People ex rel. Horton v. Prendergast, 248 id. 215; Matter of Niagara, L. O.P. Co., 125 Misc. 269.) The objection that the appropriation of property is not for a public use may be raised not alone by the owner but by any person interested, even as a taxpayer ( Long Island R.R. Co. v. Jones, 151 A.D. 407; Stratford v. City of Greensboro, 124 N.C. 127), unless waived ( Matter of Cooper, 93 N.Y. 507, affg. 28 Hun, 515; Embury v. Conner, 3 N.Y. 511, revg.
"Whether the public exigency requires the taking of private property for public use is a legislative question, the determination of which by the Legislature is, generally speaking, final and conclusive. Whether the use for which such taking is authorized is a public use is a judicial question for the determination of the court." ( Matter of City of Rochester v. Holden, 224 N.Y. 386, 390; Matter of Niagara, Lockport Ontario Power Co., 125 Misc. 269, 276, 277; Matter of City of Utica [ Land for Airport], 134 id. 60, 64.) Defendants do not deny that public exigency requires the taking of private property for the purpose in question, nor that the use for which such taking is authorized is a public one. They do deny that it is reasonably necessary for the petitioner to appropriate their property in order to discharge its duty to the public in constructing the cable line in question. Such denial raises a question of fact. ( Matter of N.Y. H.R.R. Co. v. Kip, 46 N.Y. 546, 551, 552; Rensselaer Saratoga R.R. Co. v. Davis, 43 id. 137, 144, 145; Old Homestead Water Co. v. Treyz, 202 A.D. 98, 100.)
Issues were raised and the case was tried and judgment of condemnation granted. ( 125 Misc. 269.) By that judgment commissioners were appointed, who have viewed the property, heard the testimony of the parties, and have made their report wherein they find that the value of the property and rights taken is $15,000, and have awarded that sum to the property owners.