Rochester Ry. Co. v. Robinson
| Decision Date | 03 May 1892 |
| Citation | 30 N.E. 1008,133 N.Y. 242 |
| Parties | ROCHESTER RY. CO. v. ROBINSON. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Action by the Rochester Railway Company against William H. Robinson. From a judgment of the general term affirming a judgment of the special term dismissing the petition, plaintiff appeals. Reversed.
Bacon, Briggs & Beckley,(Theodore Bacon, of counsel,) for appellant.
John Desmond, for respondent.
The plaintiff is a street surface railroad corporation, and has authority, under the railroad law, to condemn real property for its corporate uses. The defendant is the owner of premises upon one of the streets in the city of Rochester, along which the plaintiff proposes to construct and maintain its roadway. For such a purpose it is necessary to have an easement upon defendant's property, and, not being able to agree with him for its purchase, the plaintiff instituted this proceeding under the condemnation law, by the presentation of a petition to the Monroe special term. August 25, 1890. The proceeding was dismissed, and the application for the appointment of commissioners of appraisal denied, upon the sole ground that the petition was fatally defective in not setting forth the facts showing that all the conditions precedent to be observed by the plaintiff before it can take property for a public use against the will of the owner had been performed. In this respect the averment in the petition is a literal compliance with the provisions of subdivision 7 of section 3360 of the Code. It is objected to this form of pleading that it does not state facts, but only the legal conclusions of the pleader; and that it is therefore insufficient to confer jurisdiction upon the court to proceed with the matter and enter final judgment of condemnation. We do not think the objection is tenable. It is a sufficient answer to such a criticism that the whole proceeding is regulated by statute, and that upon this point the law has defined with precision and exactness the form and substanceof the allegation required. The legislature does not seem to have left any room for doubt or construction upon the subject. The section begins with a declaration that the proceeding shall be initiated by the presentation of a petition, which shall set forth certain specified facts enumerated in subdivisions 1 to 6, inclusive; and, wherever a general statement is regarded as insufficient, care has been taken to provide that facts shall be stated in detail,-as, where the name or place of residence of an owner cannot, after diligent inquiry, be ascertained, it may be so averred ‘with a specific statement of the extent of the inquiry which has been made.’ But when subdivision 7 is reached, a marked change in the phraseology and grammatical construction of the section occurs. Instead of requiring specific facts to be stated, it is provided that the petition shall contain ‘a statement that it is the intention of the plaintiff, in good faith, to complete the work or improvement for which the property is to be condemned; and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding.’ This change is significant, and was evidently intentional; and we are not at liberty to import into the paragraph provisions and requirements which the framers of the law have purposely omitted from it. While the plaintiff might, if he should so elect, set forth the several acts done by him, which constitute the preliminary steps referred to, yet he may adopt the language of the statute, and in the concise form there prescribed tender an issue to the defendant upon this branch of his case. The latter cannot be prejudiced by such a practice. What the law requires the plaintiff to do before the commencement of the proceeding is as well known to the one party as the other. If the defendant has knowledge that any preliminary step required has not been taken, he can, under section 3365, put the allegation in issue by a specific...
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...sufficient if, under them, he would be entitled to give the necessary evidence to establish a cause of action. Rochester Ry. Co. v. Robinson, 133 N. Y. 242, 246,30 N. E. 1008; Coatsworth v. Lehigh Valley R. R. Co., 156 N. Y. 451, 457,51 N. E. 301. In determining that question we must assume......
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