
    In the Matter of the Metropolitan Elevated Railway Co. In re Jones et al. In the Matter of the New York Elevated R. R. Co. In re Clarkson et al.
    
    
      (Supreme Court, Chambers, New York County,
    
    
      Filed October 28, 1889.)
    
    Eminent domain — Petition mat state facts on information and BELIEF.
    The petition in proceedings to condemn land for a railroad is to he treated as a pleading and it i§ sufficient if the allegations are stated on information and belief. So held where inability to acquire title was so stated.
    
      Davies & Rapallo, for railroads; Davenport, Smith & Perkins and Jay, Candler & Brush, for resp’ts.
   Andrews, J.

With one possible exception, every preliminary objection raised in these proceedings has been heretofore raised in similar proceedings, instituted by the present petitioners, and, after full argument and consideration, has been overruled by Mr. Justice Barrett, Mr. Justice O’Brien, or myself. Most of such objections have been overruled by both of those justices, as well as by me. These decisions hav.e never been reversed or modified, and they must be regarded as the law applicable to these matters.

The exception referred to is the objection that the inability of petitioners to acquire title is averred on information and belief.

This objection was raised before Mr. Justice O’Brien, and as heap-pointed commissioners of appraisal he must have- overruled it, although it is not referred to in his opinion. However, even if the objection should be treated as a new one, I do not think it is well founded.

All that is stated in the statute, on this point, is, that the petition shall be signed and verified according to the rules and practice of the court, and there is no rule of the court now in force prescribing how petitions of this character, or of any other character, shall be verified.

The usual practice of the court is, that when a petition is to take the place of an affidavit, and is to be used as proof of the facts therein stated, to require that the matters should be stated upon the personal knowledge of the petitioner; though even in such cases statements made upon information and belief are received as a basis for judicial action, provided the petitioner states the sources of his information and the grounds of his belief.

In many cases, however, a petition merely takes the place of a pleading, and in such cases it is the constant and uniform practice for the court to receive and act upon petitions in which many of the material allegations are made upon information and belief.

In my opinion, the petition, upon applications like the present, is to be treated as a pleading, and whether the provisions of the Code in relation to pleadings do or do not apply, it is sufficient if the allegations are made upon information and belief. If any other rule should prevail, it is evident that railroad corporations would find it almost impossible to ever present such applications to the court.

The statute declares that the petition must be signed and verified. The corporation can sign and verify only through its officers or agents. The statute prescribes what the petition shall contain, and, from the very nature of the case, it would seldom happen that any officer or agent of the corporation could have personal knowledge of all the facts which must be stated in the petition. This is especially true of the allegations of the inability of the corporation to acquire title to the real estate which it seeks to condemn. All the preliminary objections will be overruled, and the court will hear the proofs and allegations of the parties on Tuesday, October 29th, at three o’clock in the afternoon.  