Culver Contracting Corp. v. Humphrey

241 A.D. 825

Opinion

On the theory that the petitioner has been vouched into the proceeding in condemnation and that the city has joined in the petitioner’s application for an order of prohibition, the motion is granted, without costs. More formal proof of these facts may be filed. The jurisdiction of the Supreme Court in condemnation proceedings is determined by statute and the petition thereunder. There is not included within that statutory jurisdiction the power to adjudicate upon damages claimed to have been occasioned to the property of abutting owners during and by reason of the construction of the subway. (Matter of Willcox [Fourth Ave. Subway], 213 N. Y. 218.) Taking evidence to that end is in excess of jurisdiction. In the exercise of discretion, such action is properly subject to an order of prohibition. (Quimbo Appo v. People, 20 N. Y. 531, 542.) The remedy by appeal, which would otherwise be available, is not as complete or efficacious as the needs of the situation require. This grows out of the fact that permitting the court to proceed in excess of jurisdiction, subject to correction on an appeal, would result in the placing of an undue burden upon the parties aggrieved. These parties are numerous, and the taking of evidence with respect to their matters would be unduly burdensome and take up, with futile results, a great deal of the time of litigants and the court. Present — Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ.