Iroquois Gas Corp. v. Jurek

• Decision Date: 09 May 1968
• Docket Number: Nos. 1,s. 1
• Citation: 30 A.D.2d 83,290 N.Y.S.2d 140
• Court: New York Supreme Court — Appellate Division
• Parties: IROQUOIS GAS CORPORATION, Respondent, v. Albina JUREK, Appellant (two cases). IROQUOIS GAS CORPORATION, Respondent, v. Arthur T. McRAE, Defendant, and Gertrude A. McRae, Appellant. IROQUOIS GAS CORPORATION, Respondent, v. Lionel T. DeSA, Julia M. DeSa, Appellants, and Marine Midland Trust Company ofWestern New York, Defendant. Action& 2.

Page 140

290 N.Y.S.2d 140

30 A.D.2d 83

IROQUOIS GAS CORPORATION, Respondent, v. Albina JUREK, Appellant (two cases).

IROQUOIS GAS CORPORATION, Respondent, v. Arthur T. McRAE, Defendant, and Gertrude A. McRae, Appellant.

IROQUOIS GAS CORPORATION, Respondent, v. Lionel T. DeSA, Julia M. DeSa, Appellants, and Marine

Midland Trust Company ofWestern New York, Defendant.

Action Nos. 1 & 2.

Supreme Court, Appellate Division, Fourth Department.

Argued Feb. 16, 1968.

Decided May 9, 1968.

Raichle, Moore, Banning & Weiss, Buffalo, for appellants (Ralph L. Halpern, and Arnold Weiss, Buffalo, of counsel).

Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, for respondent (Alexander C. Cordes, Buffalo, of counsel).

Before BASTOW, P.J., and GOLDMAN, DEL VECCHIO, MARSH and HENRY, JJ.

OPINION

GOLDMAN, Justice.

Plaintiff purported to commence condemnation proceedings against this defendant, and other property owners in companion proceedings by service of notices of presentation and petitions on or about August 26, 1967. Although the notices stated that the petitions would be presented to Special Term on September 6th and 13th, no presentation was made and no proceedings had on those dates. Defendants served their answers on September 20th. A hearing was held on September 26th and the Special Term Justice directed submission of briefs. Instead of proceedings as directed, plaintiff abandoned the original petitions and on October 9th served defendants' attorneys with amended notices and petitions which were returnable on October 30th. These documents were rejected by defendants' attorneys and promptly returned to plaintiff's attorneys with a covering letter asserting that there was 'no provision of law authorizing the service of these papers upon us.' Plaintiff then moved to compel defendants, by their attorneys, to accept the amended petitions and notices. It is from the resettled orders granting plaintiff's motion that defendants appeal.

Defendants urge as grounds for their appeals that the amended petitions were so substantially different from the original petitions that this was not a continuation of the proceedings but, in fact, an abandonment of the original and the institution of new proceedings, and secondly, that the method of service of the papers was defective, for the process server was an employee of plaintiff and, therefore, a party to the proceedings. Before discussing these objections, we find a fundamental and threshold jurisdictional defect which, in our judgment, invalidates the proceedings and makes their dismissal mandatory. Service of the amended petitions upon the attorneys was valid only if there then existed ' a pending' proceeding. (Condemnation Law § 8; C.P.L.R. 2103(b).)

At the outset, it should be noted that condemnation and appropriation statutes are not as specific and definite as they should be. In 1964 a Senate Committee noted that 'there are over 50 public authorities in this state having the power to condemn' and expressed its concern by stating that 'The existing laws affecting condemnation and appropriation of property vary to some degree under almost every statute as to the procedure for taking * * *.' (Joint Leg. Comm. on Court Delay, Report (1964 Leg.Doc.No.44), p. 55.) This complaint was repeated by a later committee which was studying uniform procedure: 'There is a lack of uniformity in law and procedure as evidenced by the numerous laws, under which condemnation and appropriation proceedings may be instituted * * *.' (Joint Leg. Comm. on Condemnation and Appropriation of Property, 1967 Report (1967 Leg.Doc.No.28), p. 4.)

Section 4 of the Condemnation Law provides that 'The proceeding shall be instituted by the presentation of a petition * * * to a special term of the supreme court, held in the judicial district in which the property is located * * *.' There then follow eight subdivisions setting forth the facts which the petition should contain. The principal issue at bar is whether there was a 'presentation' of the petitions to the court. Unfortunately the word 'presentation' has been given several meanings. We must define it in the light of the acknowledged principle that procedural statutes in a special proceeding must be strictly construed (State of New York v. Fisher, 189 App.Div. 148, 178, N.Y.S. 184, affd. 233 N.Y. 663, 135 N.E. 961; Matter of Rochester Electric Rwy., 123 N.Y. 351, 25 N.E. 381).

The original petitions were abandoned when the amended petitions were served upon defendants' attorneys. The resettled orders requiring defendants' attorneys to accept service were made on November 25, 1967 and entered in the County Clerk's office on December 15, 1967. None of the papers, including the original and amended petitions, were filed in the office of the County Clerk until January 17, 1968. If, as we have determined 'presentation' in section 4 must be construed as 'filing' there was in fact no 'pending' proceeding before special term at the time it made its orders or at the time they were entered in the County Clerk's office.

We can find only one reported case in this state which refers to the necessity of filing under section 4 although there are many cases regarding filing requirements under various appropriation statutes. Although the objections made in City of Plattsburgh v. Kellogg, 254 App.Div. 455, 5 N.Y.S.2d 1015, did not involve the issue of 'presentation' the court clearly stated that filing is a jurisdictional requirement when it wrote at page 457, 5 N.Y.S.2d at page 1017: 'A petition in proper form, Filed as required by the statute, is a jurisdictional prerequisite to the authority of the court to entertain a proceeding thereunder.' (Emphasis added.) When we turn to the practice in other states we find an almost general requirement of filing in order to institute an eminent domain proceeding. The Pennsylvania Eminent Domain statute, enacted in 1964, was studied and suggested as a possible and desirable model by a New York Joint Legislative Committee (1964 Leg.Doc.No.44, p. 55). It (Pa.Stat.Ann. Title 26 et seq., § 1--401) provides in part: 'Section 1--402(a) Condemnation, under the power of condemnation given by law to a condemnor, which shall not be enlarged or diminished thereby, shall be effected only by the filing in the court of a declaration of taking * * *.' (Sept. 1964 Cum.Pam., p. 163.) Eliminating cases where the state or a governmental agency is the condemnor the following citations are representative of the many jurisdictions which hold that 'The filing of a proper petition containing the essential averments required by statute is jurisdictional in eminent domain proceedings, and a court is powerless * * * until such petition has been filed.' (Central Ill. Pub. Serv. Co. v. Rider, 12 Ill.2d 326, 332, 146 N.E.2d 48, 51 (see Ill.Stat. Ann. Ch. 47, § 2); Olcott v. Salt Bayou Drainage Dist., 145 Ark. 101, 106, 223 S.W. 353 (the word 'present' as used in this statute has the same meaning as the word 'file'); Dresser v. Superior Court (Contra Costa County), 231 Cal.App.2d 68, 41 Cal.Rptr. 473; Georgia Power Co. v. Lightfoot, 97 Ga.App. 330, 103 S.E.2d 99 (see Ga.Code Ann., Ch. 36--13); Fayette County Agric. Soc. v. Scott, 96 Ohio App. 6, 121 N.E.2d 118; Wyco Pipe Co. v. Hasselstrom, 81 S.D. 506, 137 N.W.2d 584; Manns v. Marinette & Menominee Paper Co., 205 Wis. 349, 235 N.W. 426, 238 N.W. 624.)

It is also noteworthy that recognized text writers on the subject are in accord with this requirement of filing before there can be a pending proceeding.

'Generally speaking, except so far as a taking by the State of New York is concerned, the procedure contemplates the commencement of the proceeding by the filing of a petition.' (1 Warren, Weed on New York Real Property, Condemnation, § 7.02.)

'Where the judicial method of condemnation is employed, the condemnor files a petition in the appropriate court, praying for the condemnation of the property described therein.' (1 Orgel, Valuation Under Eminent Domain, Introduction § 8, 2d ed., at p. 53.)

'The petition or complaint should be signed, verified when so required by statute, and properly filed.' (6 Nichols, Eminent Domain, 3d Ed. Condemnation by Judicial Proceedings, § 26.11.)

Bearing in mind that we are dealing with real property, around which the law has always placed formal safeguards, we must turn now to ascertain if the plaintiff's petitions contain sufficient facts to meet the jurisdictional requirements. The original provisions in the Code of Civil Procedure, and every successor statute, authorize condemnation 'only when the person instituting it has authority under some independent statute to acquire the title to real property for public use.' (1 Fiero, Special Proceedings 495 (3d ed).) See also, Matter of Thomson, 86 Hun 405, affd., Thomson v. De Camp, 147 N.Y. 701, 42 N.E. 726; Rochester Rwy. v. Robinson, 133 N.Y. 242, 30 N.E. 1008; County of Orange v. Ellsworth, 98 App.Div. 275, 281, 90 N.Y.S. 576, 579. Plaintiff attempted to do this in its original petitions by paraphrasing Conservation Law § 86(1). The petitions, in paragraph 4, allege that plaintiff is a public utility engaged in 'producing, transporting, distributing, and storing gas' which indicates its intention to assert its right to condemn as a 'gas' corporation. Yet the petitions, in paragraph 6, state that it ...