Hooker v. City of Rochester

57 A.D. 530, 68 N.Y.S. 301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1901
• Status: Published

Opinion

Lahghlin, J.:

This action is brought to enjoin the city of Rochester from prosecuting an eminent domain proceeding heretofore instituted by it in the County Court of Monroe county for the purpose of acquiring an easement in the bed of Hobby creek, in the town of Irondequoit, for conducting the overflow waters of the East Side sewer, so called, from the city line to Irondequoit bay.

The plaintiff owns part of the bed of said creek and the land upon either bank. He was made a party to the appraisal proceeding and interposed no objection to the jurisdiction of the court, or to the right of the city to acquire the easement, or to proceed under the charter, instead of under the Condemnation Law, or to the validity of the laws or ordinances upon which such proceeding was based.

The foregoing are the sole grounds of objection to the condemnation proceeding, and the only ground upon which the plaintiff contends that this suit can be maintained is that the County Court was without jurisdiction to hear and determine such objections, and that • he has no adequate remedy at law.

Section 176 of the city charter (Laws of 1880, chap. 14, as amd. by Laws of 1892, chap. 190) authorizes the institution of eminent domain proceedings in the County Court, as well as in the Supreme Court, and provides that when the application is made for the appointment of commissioners, and before their appointment, the court shall hear all “ parties interested, if desired.”

We are of opinion that this provision of the statute authorized the interposition by plaintiff, by affidavit or answer, of any legal objection to the right of the city to maintain such proceeding or to acquire the easement through his premises, and that if it did not, the court would necessarily have such inherent power. (Lewis Em. Dom. §§ 388-390; Matter of Mayor, 22 App. Div. 124; Matter of City of Buffalo, 64 N. Y. 547; Matter of New York Central R. R. Co., 66 id. 407; Matter of New York, West Shore & Buffalo R. Co., 64 How. Pr. 216 ; Matter of Niagara Falls & Whirlpool R. Co., 108 N. Y. 375 ; Matter of Niagara Falls & Whirlpool R. Co., 121 id. 319; Matter of Thomson, 86 Hun, 405, 410; Citizens’ Water Works Co. v. Parry, 59 id. 202; Matter of Staten Island R. T. R. R. Co., 20 Wkly. Dig. 15; The St. Joseph Term. Ry. Co. v. The H. & St. J. Ry. Co., 94 Mo. 535 ; Willard v. Boston, 149 Mass. 176.)

The order made on such hearing would be reviewable hy appeal. (Code Civ. Proc. § 1357; Matter of Mayor, 22 App. Div. 124; Matter of City of Buffalo, 64 N. Y. 547; Rensselaer & Saratoga R. R. Co. v. Davis, 43 id. 137; Matter of Village of Harrisville, 49 N. Y. St. Repr. 288, 290 ; S. C., sub. nom. Village of Harrisville v. Lawrence, 66 Hun, 302; Matter of City of Utica, 73 id. 256 ; Matter of Broadway & Seventh Ave. R. R. Co., 69 id. 275; Matter of De Camp, 151 N. Y. 557.)

Upon well-settled principles a court of equity will. not entertain jurisdiction for the relief here sought. (Kelsey v. King, 32 Barb. 411; Kip v. New York & Harlem R. R. Co., 6 Hun, 24; People v. Wasson, 64 N. Y. 167; Matter of Cooper, 93 id. 507; City of Brooklyn v. Copeland, 106 id. 496.)

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.