Metropolitan Elevated Railway Co. v. Siefke

New York Supreme Court

Metropolitan Elevated Railway Co. v. Siefke

15 N.Y.S. 224, 39 N.Y. St. Rep. 499, 60 Hun 584, 1891 N.Y. Misc. LEXIS 3168

DecidedJune 26, 1891

StatusPublished

This text of 15 N.Y.S. 224 (Metropolitan Elevated Railway Co. v. Siefke) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Metropolitan Elevated Railway Co. v. Siefke, 15 N.Y.S. 224, 39 N.Y. St. Rep. 499, 60 Hun 584, 1891 N.Y. Misc. LEXIS 3168 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Patterson, J.

In the disposition which we think should be made of this appeal, it is not necessary to pass upon the question as to the proper stage at which to appeal from orders made in applications of this character. All that has been done thus far is the making of an order appointing commissioners after a trial had before a referee, to whom it was referred to ascertain the facts and report as required by law. Whether the order appointing the commissioners may be appealed from, or whether there is jurisdiction in the court to entertain an appeal until the award has been made by the commissioners thus appointed, is a matter which it is not necessary to pass upon now; and for the reason that we think, unless some controlling circumstance is presented, or some emergency exists, which actually requires the interposition of the court to prevent the commissioners from proceeding to ascertain the value of the easements sought to be taken, there should be no stay granted. It appears from the record in this case that the railroad company is in possession of certain easements appurtenant to the defendant’s land, and that it has instituted the proper proceeding to acquire these easements by due course of law; and all that has been done thus far is to set the machinery of the courts in motion to enable the plaintiff in such due course of law to acquire that property, as to which, now, it stands in the position of a trespasser. No wrong or injury whatever can happen to the defendant by reason of the appointment of this commission, or its proceeding in the discharge of its duty up to the point of ascertaining and fixing the value, and reporting thereon. If it becomes advisable, after the commissioners shall have reported, for the defendant to appeal, there will be ample time to entertain a motion for a stay of proceedings. But, as the parties are situated now, the stay of proceedings merely acts to prevent the plaintiff doing that which the law authorizes it to do, and thus, by the compulsion of the court, it maintains the position of a trespasser as to these easements. We think the order should be reversed, with costs. All concur.

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Patterson, J.

In the disposition which we think should be made of this appeal, it is not necessary to pass upon the question as to the proper stage at which to appeal from orders made in applications of this character. All that has been done thus far is the making of an order appointing commissioners after a trial had before a referee, to whom it was referred to ascertain the facts and report as required by law. Whether the order appointing the commissioners may be appealed from, or whether there is jurisdiction in the court to entertain an appeal until the award has been made by the commissioners thus appointed, is a matter which it is not necessary to pass upon now; and for the reason that we think, unless some controlling circumstance is presented, or some emergency exists, which actually requires the interposition of the court to prevent the commissioners from proceeding to ascertain the value of the easements sought to be taken, there should be no stay granted. It appears from the record in this case that the railroad company is in possession of certain easements appurtenant to the defendant’s land, and that it has instituted the proper proceeding to acquire these easements by due course of law; and all that has been done thus far is to set the machinery of the courts in motion to enable the plaintiff in such due course of law to acquire that property, as to which, now, it stands in the position of a trespasser. No wrong or injury whatever can happen to the defendant by reason of the appointment of this commission, or its proceeding in the discharge of its duty up to the point of ascertaining and fixing the value, and reporting thereon. If it becomes advisable, after the commissioners shall have reported, for the defendant to appeal, there will be ample time to entertain a motion for a stay of proceedings. But, as the parties are situated now, the stay of proceedings merely acts to prevent the plaintiff doing that which the law authorizes it to do, and thus, by the compulsion of the court, it maintains the position of a trespasser as to these easements. We think the order should be reversed, with costs. All concur.

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Bluebook (online)

15 N.Y.S. 224, 39 N.Y. St. Rep. 499, 60 Hun 584, 1891 N.Y. Misc. LEXIS 3168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-elevated-railway-co-v-siefke-nysupct-1891.