Opinion
March, 1905.
Myron T. Bly, for the appellant.
Chester F. Kiehel and W.W. Webb, for the respondent.
On the 13th day of October, 1903, the common council of the city of Rochester adopted an ordinance closing a specified part of Jordan alley in said city and providing for the assessment of the expense thereof upon lots or parcels of land enumerated in the ordinance. Said ordinance was duly approved by the mayor of the city, and the required notice was thereafter given to all persons claiming to be damaged by the closing of the alley and citing them to appear at a time and place designated in the notice. The appellant appeared in response to the notice and made a claim for damages which was not allowed, and the commissioner of public works has been unable to agree with him as to the damages which he claims to have sustained by the closing of the alley. The appellant filed a claim against the city for $4,000 for damages caused to him by reason of the discontinuance of said alley, and the city contends that the value of his easement, if any, therein does not exceed six cents
Thereupon the city commenced this proceeding for the appointment of commissioners to ascertain the compensation to which the said Neun is entitled by reason of the closing of said alley.
The petition contains the facts above recited, and among others the names of the officials of the city, a copy of the improvement ordinance, a description of the street or alley already discontinued and the facts showing the necessity for its discontinuance.
The appellant appeared and interposed several preliminary objections to the petition, which were overruled, and the order appealed from was granted. The appellant presented a proposed answer which he was to be permitted to serve in case his objections were disallowed, and the order refers the issues thus raised to a referee to hear and determine.
The respondent contends that the order is not appealable. While the proposition is not free from doubt, we think the weight of authority, and of principle as well, are in favor of allowing the appeal. ( Matter of Thomson, 86 Hun, 405, 410; Matter of Broadway Seventh Ave. R.R. Co., 69 id. 275; Hooker v. City of Rochester, 57 App. Div. 530; Matter of Mayor, 22 id. 124; Matter of City of Buffalo, 64 N.Y. 547; Matter of City of Utica, 73 Hun, 256, 260.)
The only specific authority for an appeal from an order under the Condemnation Law is found in section 3375 of the Code of Civil Procedure which permits an appeal from the final order and allows the antecedent proceedings to be reviewed upon the appeal. Following strictly this provision it has been held that an appeal from an interlocutory judgment appointing commissioners to appraise lands in a proceeding of this character is not permissible. ( Erie R.R. Co. v. Steward, 59 App. Div. 187; Village of St. Johnsville v. Smith, 61 id. 380; Stillwater, etc., R. Co. v. B. M.R.R., 67 id. 367.) These authorities are not necessarily in conflict with the principle already enunciated. When the proceeding has reached the status of a judgment appointing commissioners the preliminary stages have been passed and an appeal may well be deferred to await the final order. In the present proceeding the objections were jurisdictional in that they alleged that the petition omitted certain essential facts. Objections of this kind interposed at the threshold of the proceeding ought to be determined before the expense and delay of a protracted hearing and which possibly may be obviated.
The proceeding under the Condemnation Law is a special proceeding, and although there is no definite warrant for an appeal from a preliminary order the general rule applicable to special proceedings should obtain. (Code Civ. Proc. § 1357; Hooker v. City of Rochester, 57 App. Div. 530.)
We think, however, the preliminary objections are untenable. At the outset it is to be observed that the appellant in his brief proceeds upon the assumption that the answer of the claimant is to be considered upon this appeal as it is contained in the record. The objections merely attacked the sufficiency of the petition. The answer may raise issues which if determined favorably to the appellant may defeat the proceeding, but we are to treat the facts as contained in the petition as unchallenged the same as where a demurrer is interposed to a pleading.
Section 143 of the charter of second class cities (Laws of 1898, chap. 182) prescribes the manner in which a common council of a second class city may discontinue a street and the determination of the question rests with that body. After the discontinuance has been determined upon, the damages, unless fixed by agreement, are to be ascertained pursuant to the Condemnation Law. This course was adopted in the present proceeding and the petition was in conformity to section 3360 of the Code of Civil Procedure which sets out what the petition shall contain.
Among the facts necessary to be set forth are: "The public use for which the property is required and a concise statement of the facts showing the necessity of its acquisition for such use." (Code Civ. Proc. § 3360, subd. 3.) The appellant contends that there is not sufficient compliance with these requirements. The ordinance adopted recites the necessity of the contemplated improvement. The 5th paragraph of the petition alleged that the street is "unnecessary and useless as a public street and is a menace to the health-safety, peace and good order of the residents of said city of Rochester and especially to the abutting owners thereon and will necessitate a large expense to the city in maintaining, repairing, lighting and grading the same;" that it is useless and not desired by the abut, ting owners therein and the petition further avers that the claimant's premises do not abut upon the alley discontinued. These allegations are a sufficient compliance with the statute. "Public use for which the property is required" is an essential allegation where property is to be taken from the owners. In this instance the city is not taking the land, but for certain specified reasons deemed adequate is closing a street, and it is not, therefore, putting it to any use, and the facts authorizing the closing are ample to confer jurisdiction.
Another objection is that the petition does not allege that the city intends "in good faith to complete the work or improvement for which the property is to be condemned." (Code Civ. Proc. § 3360, subd. 7.) There is no averment of that kind. Again, that fact is important where property is to be acquired for some definite purpose. It cannot be vital when the city is not engaged in the acquisition of property, but closing an alley which has been in its possession and control for forty years, because its further occupancy is deleterious to the public health and its maintenance will involve a useless expenditure of money and no actual improvement of the premises is designed, only their abandonment for street purposes.
It is urged also that the petition is fatally defective in failing to state the residence of the appellant. He appeared before the commissioner of public works, presented his claim for damages and has filed it against the city, so that his identity is not in the dark.
As to these last objections it may be suggested that they are not sufficiently raised. The objections all relate to the insufficiency of the petition to vest the court with jurisdiction of the proceeding and to appoint the commissioners. Objections pertaining to defects of minor import which could readily be supplied should be raised specifically and not be concealed in general objections of a jurisdictional character and which are supposed to reach to the heart of the proceeding.
The order should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.