
    The New York Central and Hudson River Railroad Company, Respondent, v. Guillaume A. Reusens and Others, Appellants, Impleaded with Amanda De Graaf and Others, Defendants.
    Second Department,
    June 7, 1912.
    Eminent domain — failure of defendant to answer in condemnation proceedings—award of immediate possession unauthorized.
    Where the defendant in a proceeding to condemn land for railroad purposes has appeared but failed to answer and a judgment of condemnation has been entered, it is the same as though an answer had been interposed and a trial had of the issues raised.
    But where the defendant failed to answer, the court is without power to award the condemnor immediate possession on giving security, pursuant to section 3380 of the Code of Civil Procedure.
    Section 3380 of the Code of Civil Procedure provides only for cases in which an answer has been interposed.
    Hirschberg, J., dissented.
    Appeal by the defendants, Guillaume A. Reusens and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester, on the 28th day of December, 1911, permitting the plaintiff to take possession of the premises sought to be condemned, upon paying certain moneys into court.
    
      James W. Husted, for the appellants.
    
      George H. Walker [Alexander S. Lyman with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff seeks in this proceeding to condemn certain lands along the line of its railroad for additional terminal and operating facilities. The petition was duly presented at a term of the Supreme Court held in Nyack, Rockland county, tin the 25th day of November, 1911. The defendants appellants duly appeared, but did not put in any answer, and judgment of condemnation was duly entered in the office of the clerk of Westchester county on the 11th day of December, 1911. Subsequently the plaintiff prepared and served on said defendants a notice of motion, supported by affidavits, for an order granting the plaintiff immediate possession of the premises described in the petition, with the right to devote the same temporarily to the public uses specified therein, upon depositing with the count the sum required by the court in accordance with section 3380 of the Code of Civil Procedure, and for such other and further relief as to the court might seem proper. The defendants appeared in opposition to this motion, upon the ground that the court was without jurisdiction to grant the same, and the court granted the motion. The defendants appeal to this court from the order entered, and the only question is that of the jurisdiction of. the court to grant the same.

The learned court at Special Term, in granting the motion, handed down an opinion, in which, after stating that it must be assumed for the purposes of this motion that the public interest required the immediate use of the premises, says: “ The delay in these proceedings invariably follows the judgment of condemnation and the appointment of commissioners and is incident to the proceedings before the • commissioners, and for the court to hold that it has no power in such a case as this to grant immediate possession, would be to nullify the statute which was enacted for the benefit and relief of the public. I think it should be held for the purposes of this motion, that a judgment of condemnation having been made, the case stands the same as though an answer had been interposed and the trial had been had upon the issues raised thereby.”

We quite agree with the learned court “ that a judgment of condemnation having been made, the case stands the same as though an answer had been interposed and the trial had been had upon the issues raised thereby,” but it does not follow from this that the court is authorized to give immediate possession. On the contrary, the statute provides that “If the decision is in favor of the plaintiff, or if no answer has been interposed and it appears from the petition that he is entitled to the relief demanded, judgment shall be entered, adjudging that the condemnation of the real property described is necessary for the public use, and that the plaintiff is entitled to take and hold the property for the public use specified, upon making compensation therefor, and the court shall thereupon appoint three disinterested and competent freeholders,”, etc. (Code Civ. Proc. § 3369.) The next section provides for the proceedings of commissioners, and section 3311 provides for the proceedings on the coming in of the report of such commissioners, and it is provided: “If the report is confirmed, the court shall enter a final order in the proceeding, directing that compensation shall he made to the owners of the property, pursuant to the determination of the commissioners, and that upon payment of such compensation, the plaintiff shall be entitled to enter into the possession of the property condemned, and take and hold it for the public use specified in the judgment. Deposit of the money to the credit of, or payable to the order of the . owner, pursuant to the direction of the court, shall be deemed a payment within the provisions of this title.”

It thus appears that the statute has fully provided for a case in which no answer is interposed, and it makes no suggestion of any intention to permit the plaintiff to enter into possession of the premises until the “payment of such compensation ” as has been found by the commissioners and confirmed by the court. Under the well-established rule that the express mention of one thing excludes, by implication, all others (Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57), it must be apparent that the learned court at Special Term has failed to get the true spirit of the statute. Section 3380 merely provides for a case in which an answer is interposed, and it appears to the satisfaction of the court that the public interests will be prejudiced by the delay, in which event the court is authorized to direct “ that the plaintiff be permitted to enter immediately upon the real property to be taken, and devote it temporarily to the public use specified in the petition, upon depositing with the court the sum stated in the answer as the value of the property, and which sum shall’ be applied, so far as it may be necessary for that purpose, to the payment of the award,” etc. It is to avoid the delay before the entry of judgment, not that subsequent thereto, that section 3380 of the Code of Civil Procedure is directed, and while the court will not permit a mere trick or an inadvertence to defeat the purposes of this section (New York Central & H. R. R. R. Co. v. Lally, 62 Misc. Rep. 506; Matter of Niagara, Lockport & Ontario Power Co., 111 App. Div. 686), there is no justification in any adjudicated case for the order now before us.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Jenks, P. J., and Rich, J., concurred; Hirschberg, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  