Cibulas v. Village of Menands

263 A.D. 763, 32 N.Y.S.2d 370, 1941 N.Y. App. Div. LEXIS 4852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1941
• Status: Published

Opinion

This is an appeal in a proceeding under subdivision 1 of section 159 of the Village Law, from an order made at Special Term, Albany County, on January 10, 1941, and from a judgment of the Supreme Court entered in the Albany county clerk’s office on March 31, 1941, which adjudged the plaintiffs’ application for appointment of commissioners of appraisal be granted. Defendant also appeals from the report and decision of the official referee, and the findings of fact and conclusions of law made by him and filed in the Albany county clerk’s office on November 29, 1940, and his refusals to find the requests of the defendant. The proceedings were commenced upon a verified claim under subdivision 1 of section 159 of the Village Law, to recover damages alleged to have been sustained to property by the change of grade of a village street. The claim was filed with the board of trustees and no agreement was reached, and the plaintiffs made an application upon notice of motion for the appointment of commissioners. The village of Menands interposed an answer which put in issue the alleged change of grade and set forth affirmative defenses. An order was made referring the matter to the Hon. Wesley O. Howard, of Troy, N. Y., as official referee. Some testimony was taken before Judge Howard, but was not completed at the time of his death and the attorneys entered into a stipulation for a further order of reference to the Hon. Harold J. Hinman, official referee, to hear and determine the evidence offered relative to the change of grade and of the issues raised by plaintiffs’ petition and the defendant’s answer. A series of hearings were had before Judge Hinman, as referee, and he handed down a memorandum and opinion in which he concluded that the application for the appointment of three commissioners to determine compensation to which plaintiffs were entitled for such damage should be granted, and he made findings of fact and conclusions of law, and he marked the defendant’s findings in requests to find. A motion was made before Judge Schiriek for an order approving, confirming and ratifying the decision of fact and report and for the appointment of three commissioners. Judge Schiriek decided that the decision of Referee Hinman, appointed to hear and determine, stood as a decision of the court and that a review could only be had by appeal to the Appellate Division, and that it was the duty of the clerk to enter judgment on the report, and the only matter before" him was the appointment of the commissioners, which he appointed. The practice seems to have been a little unusual, but the evidence taken fully substantiates the results reached. The court approves the findings of fact and conclusions of law found by Referee Hinman and adopts the same as its findings of fact and conclusions of law, and affirms the same and the judgment entered in the Albany county clerk’s office on March 31, 1941, appointing the commissioners. Judgments and orders appealed from affirmed, with costs. Hill, P. J., Crapser, Bliss, Heffeman and Schenek, JJ., concur.