
    Matter of Petition of Thomas R. Hodge and Others.
    (Supreme Court, Westchester Special Term,
    June 1899.)
    Drainage proceedings initiated under Revised Statutes — Condemnation under Code of Civil Procedure,
    Proceedings taken after the passage of the Condemnation Law (Code Civil Procedure, § 3358, et seq.) to appraise the value of easements theretofore taken as necessary to drain certain lands in a county must be begun in the Supreme Court under that law, although the original application to drain was made to a county judge of the county under the Revised Statutes (Laws of 1869, chap. 888 as amended), which authorize the drainage commissioners, where they cannot agree with the owners, to acquire title in a manner therein specified.
    Motion to dismiss petition of Thomas R. Hodge and others, commissioners in a drainage proceeding, for the appointment of commissioners to condemn the easements necessary for drainage.
    Cyrus A. Bishop, for motion.
    Frederick W. Sherman, opposed.
   Barnard, J.

A petition was presented to the county judge of Westchester county to drain certain lands situated wholly in. that- county. The county judge appointed, commissioners to hear and determine upon the application whether it was a necessary work. The commissioners reported in favor of the drainage asked for, and all needful maps and surveys were prepared and filed. The report was confirmed and the commissioners proceeded to do the work and they have completed the same.

It was necessary to open a ditch or ditches through lands of persons other than those of the petitioner. The application was made to the county judge under chapter 888 of the Laws of 1869, and the amendatory acts thereto. By this act the commissioners were given power in section 9 that if they could not agree with the owners of lands taken they should proceed to acquire title to the easement necessary for the work “ in the manner, so far as the same is applicable ” under the General Railroad Law. Ho application for the appointment of commissioners to appraise the value of land or rights taken was ever made to the county judge, and now this application is made in the Supreme Court for the appointment of condemnation commissioners to assess the value of the land taken. It is no valid objection that the work was done before the application is made. The owner could waive the right of prepayment, and even if there be no waiver the condemnation proceeding can be taken after the work is done. Matter of Ryers, 72 N. Y. 7.

Gan the application be made in this court?

While the General Railroad Law was in force it was held that the condemnation proceedings could only be taken before the county judge. People ex rel. Rutherford v. County Court, 28 Hun, 14. In 1896 a new condemnation law was passed. Code Civil Procedure, § 3358. This new law requires that all condemnation proceedings shall be taken by petition “ to the Supreme Court ” and all other acts and parts of acts which prescribe a different method are repealed. Code, § 3383. This proceeding is properly brought in this court and the motion to dismiss the same is denied.

Motion denied.  