
    John R. Lent and Henry M. Taylor, Special Guardian, Resp’ts, v. The New York & Massachusetts Railway Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    1. Eminent domain—Action for award—Parties.
    In proceedings in inritum to acquire land for a railroad the commissioners made awards to both of the plaintiffs. Their report was confirmed and the awards ordered paid to the special guardian and such order was affirmed by the general term. Held, that while the special guardian could maintain an action for the awards in his own name, yet as Lent had an interest in the subject of the action, it was proper to join him as plaintiff.
    2. Same—Pleading.
    A complaint setting up an award of damages and that the report of the commissioners was confirmed on motion of the defendant, states facts sufficient to constitute a cause of action.
    Appeal from judgment in favor of plaintiffs and from interlocutory judgment overruling demurrer to the complaint.
    
      Homer A. Nelson and O. 'D. M. Baker, for app’lt; Henry M. Taylor, for resp’ts.
   Dykman, J.

This is an action upon the award of commissioners appointed to determine the compensation to be made to John E. Lent for certain lands and premises belonging to him and proposed to be taken by the defendant for the purposes of its incorporation, in addition to certain other lands already condemned for such purpose.

The complaint alleged the incorporation of the defendant, the presentation of a petition by the company praying for the appointment of commissioners of appraisal for the lands of John E. Lent, the' appointment of three commissioners for that purpose, and the appointment of Henry M. Tajdor, one of the plaintiffs, as special guardian of John E. Lent, the other plaintiff in this action, in such proceedings.

Then the complaint stated the hearing before the commissioners, the making of their report on the 14th day of July, 1888, of $14,-270.79 in favor of John E. Lent, and of $300 to H. M. Taylor, as such special guardian, the confirmation of such report, on motion of the defendant, by an order of the court duly entered in the office of the county clerk of Dutchess county, which directed the defendant to pay to Henry M. Taylor, as such special guardian, the award of $14,270.79, as well as the sum of $300 so awarded to him as special guardian.

The complaint finally set up the appeal by the defendant to the general term of the supreme court from the report of the commissioners and the order confirming the same, and the affirmance of both, and then demanded judgment for both sums so awarded by the commissioners.

To this complaint the defendant objected by demurrer upon five specified grounds.

First. That plaintiffs have no legal capacity to sue.

Second. That there is a misjoinder of parties plaintiff, and

Third. That there is a defect of parties plaintiff.

Fourth. That causes of action have been improperly united. That a cause of action in favor of John E. Lent, and a cause of action in favor of Henry M. Taylor, as special guardian of John E. Lent, have been united in one complaint.

Fifth. That the complaint does not state facts sufficient to constitute a cause of action.

The demurrer was overruled at special term, and the .defendant has appealed from the final judgment awarding to the plaintiffs the relief demanded in the complaint, and also from the interlocutory order and judgment entered upon the decision of the special term.

After a most thorough and careful examination we have failed to discover any merit in the defendant’s demurrer, or in the questions of law presented thereby.

We can find no reason why the plaintiffs have not legal capacity to sue, and the defendant has pointed out none as he is required to do by § 490 of the Code of Civil Procedure.

The second and third specification of grounds in the demurrer present the same question respecting the parties plaintiff, and in relation thereto we deem it sufficient to say that under the order of affirmance of the general term the whole amount was made payable to the plaintiff, Henry M. Taylor, and he could, therefore, maintain this action in his own name alone.

But the whole amount did not belong to him, and when he received the same he would hold the great part of the same for John E. Lent, to whom it belonged. While, therefore, Mr. Taylor might sustain the action alone under § 449 of the Code, yet as John E. Lent had an interest in the subject of the action, and in obtaining the judgment demanded, it was proper to join him as plaintiff. Code, § 446; Hubbell v. Medbury, 53 N. Y., 102.

In relation to the fifth ground specified by the demurrer, it is deemed sufficient to say that the complaint, after alleging the facts in relation to the petition for the appointment of commissioners, and their appointment, and the report which they made, then states that such report was presented to the court, and, on motion of the defendant, in all things confirmed.

The rule seems to be now that if the company in proceedings like these elect to proceed and procure the confirmation of the report of the commissioners of appraisal the relation of vendor and vendee becomes thus established between the parties and the corporation is bound to pay the award. Matter of Rhinebeck & Connecticut R. R. Co., 67 N. Y., 242.

In our view this salutary principle has not been abrogated or affected by the amendment of May 6, 1876, and our conclusion is that the judgments and order from which this appeal was taken should be affirmed, with one bill of costs on this appeal.

Pratt, J., concurs; Barnard, P. J., not sitting.  