Lent v. New York & M. Ry. Co.

• Decision Date: 26 January 1892
• Citation: 29 N.E. 988,130 N.Y. 504
• Court: New York Court of Appeals Court of Appeals
• Parties: LENT et al. v. NEW YORK & M. RY. CO.

130 N.Y. 504

29 N.E. 988

LENT et al.

v.NEW YORK & M. RY. CO.

Court of Appeals of New York,

Second Division.

Jan. 26, 1892.

Appeal from supreme court, general term, second department.

Action by John R. Lent and another against the New York & Massachusetts Railway Company to recover an award in railway condemnation proceedings. From a judgment of the general term affirming a judgment of the special term in favor of plaintiffs, defendant appeals. Reversed.

The other facts fully appear in the following statement by BROWN, J.:

The complaint alleges the incorporation of the defendant; the presentation to the supreme court, pursuant to the statute of this state, of a petition by said railroad company asking for the appointment of commissioners to ascertain and appraise the compensation to be made to plaintiff John R. Lent and others for certain real estate which said corporation desired to take for railroad purposes; the appointment of commissioners, and of Henry M. Taylor as special guardian for said Lent, in said proceedings, and a report by said commissioners that the amount which ought to be paid to said Lent for said real estate was the sum of $14,270, and to said special guardian for costs and expenses the sum of $300; that said report was, upon motion of the railroad company, confirmed, and an order entered directing said company to pay said sums to said Henry M. Taylor, special guardian of said Lent; that subsequently said defendant appealed to the general term from said order; and that the said report any order had been upon such appeal duly affirmed. These allegations were followed by a prayer for judgment for the amount of the award and costs. The defendant demurred to the complaint upon the grounds: (1) That the plaintiffs had not legal capacity to sue; (2) that there was a non-joinder of parties plaintiff; (3) that there was a defect of parties plaintiff: (4) that causes of action were improperly united; (5) that the complaint did not state facts sufficient to constitute a cause of action.

FOLLETT, C. J., and VANN, J., dissenting. 7 N. Y. Supp. 729, reversed.

Robert F. Wilkinson, for appellant.

Henry M. Taylor, for respondents.

BROWN, J., ( after stating the facts.)

It is provided by section 17 of the general railroad act, in reference to the taking of land for railroad purposes, that, upon the report of the commissioners of appraisal being made, the railroad company shall give notice to the parties to be affected by the proceeding for the confirmation of such report, and the court shall thereupon confirm the same, and make an order containing a recital of the substance of the proceedings, a description of the real estate, and a direction to whom the money shall be paid, or in what bank and in what manner it shall be deposited. Prior to 1876 it was provided, in section 18, that a certified copy of the order confirming the report should be recorded at full length in the clerk's office of the county in which the land described in the order was situated; and thereupon, and upon payment or deposit of the sum to be paid as compensation for the land and for costs, etc., the title should vest in the company. Under the section quoted, this court decided in Re Rhinebeck & C. R. Co., 67 N. Y. 242, that the confirmation of the report created reciprocal rights between the company and the land-owner, and put it beyond the power of the company thereafter to abandon the proceedings, and that the order of confirmation operated as a judgment binding both parties. This result followed the conclusion drawn from the construction given the sections of the statute quoted, that from the date of the order confirming the report the duty of the company to pay the award was absolute, and that it was not necessary, in order to conclude the corporation, that the title to the land should have become vested in it. By chapter 198, Laws 1876, section 18 was amended by adding thereto the following: ‘If the company shall neglect to have such order recorded, and make the payment or deposit, as herein provided, for the period of ten days after the date of such order, any party to such proceedings, and interested therein, may, at his election, cause a certified copy of the order to be recorded as aforesaid; and thereupon the moneys therein directed to be paid, with interest thereon from the date of said order, shall be a debt against the company, and the same shall be a lien on such real estate, and may be enforced and collected by action at law or in equity, in the supreme court, with costs. Except, nevertheless, the company may abandon such proceedings by filing, within thirty days after notice in writing of such recorded order, in the office of such clerk, a notice of its determination to do so, and paying the reasonable costs and expenses of such party, to be ascertained and adjusted on motion by the court making such order. But, in case of such abandonment, the company shall not renew proceedings to acquire title to such lands, without a tender or deposit in court of the amount of said award, and the interest thereon.’ This amendment affected a material change in the law in respect to the question raised upon this appeal. The company was no longer concluded by the order confirming the report. Its duty to pay did not then arise, nor did its right to discontinue the proceedings then cease. The duty to pay, as well as the land-owner's right to sue for the award, was made to depend upon the recording of the order. ‘Thereupon’ is the language of the act; that is, upon the recording of the order, ‘the moneys therein directed to be paid * * * shall be a debt against the company, and the same shall be a lien upon such real estate, and may be collected by action at law or in equity in the supreme court.’ And the right to discontinue the proceedings did not end until 30 days after recording of the order, or 30 days after notice in writing that it had been recorded by some other party to the proceedings.

Under the section as amended, title to the land vested in the corporation upon the recording of the order and payment or deposit of the award. But no debt was created against the corporation until the order was recorded, and, if the company neglected to have that act performed, any other party to the proceedings could cause it to be done, and thereby establish the company's liability to pay the award. It follows that no cause of action existed against the corporation in favor of the land-owner for the amount of the award until the original or a certified copy of the order was recorded, and hence an allegation of that fact was essential in the complaint.

The complaint, while it did not expressly allege that the order had been recorded, did state that it had been ‘entered,’ and we are of the opinion that this term was used by the pleader as synonymous with the word ‘recorded.’ This is manifest by the last line of the paragraph,-‘to which order, or its record, plaintiffs beg leave to refer.’ The words ‘entered’ and ‘entry’ are frequently used as synonymous with ‘recorded’ in the law-books. Code Civil Proc. § 1236. All through the Statutes, Code, and rules, the word ‘filing’ describes the indorsement on a paper of the date when...