Stillwater & Mechanicville Street Railway Co. v. Boston & Maine Railroad

67 A.D. 367, 73 N.Y.S. 744

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinion

Smith, J. :

By section 12 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676) it is in substance provided that if two railroad corporations cannot agree upon the amount of compensation for making intersections and connections, or upon the grades or manner of such intersections and connections, “ the same shall be ascertained and determined by commissioners * , * * as is provided in the Condemnation Law.” There is in the Railroad Law no other provision for the procedure to determine such a controversy. By this provision the procedure, under the Condemnation Law, seems to be added to this section for the purpose of determining the questions therein presented. As a part of that procedure an appeal is authorized by a defendant only from a final order in the proceeding. (See Village of St. Johnsville v. Smith, 61 App. Div. 380.) By section 3359 of the Code of Civil Procedure, which is a part of the Condemnation Law, it is provided, “ Whenever any person is authorized to acquire title to real property for a public use by condemnation, the proceeding for that purpose shall be taken in the manner prescribed in this title.”- In the preceding section, “ real property ” is defined as “ Any right, interest or easement therein or appurtenances thereto.” If then the procedure, under the Condemnation Law, has become a part of the Railroad Law by reference thereto in section 12, this appeal is unauthorized and the motion to dismiss the same should be granted.

Parker, P. J., Edwards and Chase, JJ., concurred; Houghton, J., not sitting.

Appeal dismissed, without costs.