Opinion
May 13, 1953.
Motion to dismiss appeal denied. Memorandum: The order from which the appeal is taken denies appellant's preliminary motion to dismiss the petition in a condemnation proceeding wherein respondent is seeking to condemn the entire assets, including both real and personal property of the appellant, a public utility corporation. The attack upon the petition having been made before the joinder of issue, and upon the ground, inter alia, that the County Court was without jurisdiction of the subject matter, we think that the order, although intermediate in character, is appealable, notwithstanding the provisions of section 19 of the Condemnation Law. ( Matter of Thomson, 86 Hun 405, affd. on opinion below 147 N.Y. 701; Matter of City of Rochester [ Neun], 102 App. Div. 99.) We believe that such fundamental jurisdictional questions affecting as they do appellant's substantial rights, when presented at the inception of the proceeding, should be resolved before the expense and delay of what may be a protracted and costly litigation. ( Matter of City of Rochester [ Neun], supra.) The decisions of this court in New York State Elec. Gas Corp. v. Smith ( 269 App. Div. 725) and City of Corning v. Carr ( 278 App. Div. 1018) are readily distinguishable, as in neither case was it claimed that the court was without jurisdiction of the subject matter, and moreover, in each case the motion to dismiss was made after the joinder of issue. The motion to dismiss the appeal from this order should be denied.