
    ERIE & J. R. CO. v. BROWN et al.
    (Supreme Court, Special Term, Orange County.
    December 23, 1907.)
    Eminent Domain—Proceedings—Judgment—Entry—Referee’s Report.
    Code Civ. Proe. § 3367, provides that in condemnation proceedings the court may order the same referred to a referee to hear and determine, on which trial the court or referee shall file a decision according to the provisions of the act as to decisions upon the trial of issues of fact by the court or referee. Section 3369 provides that judgment shall be entered pursuant to the direction of the court or referee in the decision filed. Held, that a referee, to whom a proceeding to condemn land was referred, had authority, on dismissing the petition, to direct "judgment of dismissal, and that the clerk, on the filing of such order, properly entered judgment.
    
      Condemnation proceedings by the Erie & Jersey Railroad Company against'Walter H. Brown and others. A judgment for defendants was entered on a referee’s report, whereupon defendants moved to vacate the same. Motion denied.
    Bacon & Merritt,"for plaintiff.
    Geo. R. Brewster, for defendants.
   TOMPKINS, J.

The plaintiff made petition to this court at Special Term to acquire by condemnation lands owned by the defendants. An answer was interposed, and an order made appointing a referee to hear and determine the issues. The report of the referee finds that upon the petitioner’s evidence the proceeding was prematurely brought, certain notices required by the statute not having been served, and directs judgment against the plaintiff, dismissing the petition, with costs; and the referee concludes his report as follows: “And I do order judgment to be entered accordingly.” After the filing of the referee’s report the clerk entered judgment in accordance therewith, and this ■-motion is made by the defendants to vacate said judgment, on the ground that the clerk had no power to enter judgment on the report of the referee without direction by the court.

Section 3367 of the Code of Civil Procedure provides that in condemnation proceedings:

“The court shall try any issue raised by the petition and answer at such time and place as it may direct, or it may order the same to be referred to a referee to hear and determine, and upon such trial the court or referee shall file a decision in writing, or deliver the same to the attorney for the prevailing party, within twenty days after the final submission of the proofs and allegations of the parties, and the provisions of this act relating to the form and contents of decisions upon the trial of issues of fact by the court or a referee, and to making and filing exceptions thereto, * * * and to the powers of the court and referee upon such trial, shall be applicable to a trial and decision under this title.”

It seems from this section to have been the intention of the Legislature to confer upon a referee appointed under the condemnation law the same power to hear and determine and direct judgment that a referee has who is appointed to hear and determine the issues in an action ; and section 3369 provides that:

• “Judgment shall be entered pursuant to the direction of the court or referee in the decision filed.”

Here the referee made and filed his decision, in which he directs judgment against the plaintiff, .dismissing the petition, with costs. The clerk, then, clearly had power, and it was his duty under the provision of section 3369, above quoted, to enter judgment in accordance therewith. While it is true that it was held in Potter v. Durfee, 44 Hun, 197, that no judgment should be entered in a special proceeding without the direction of the court, yet that was a proceeding by petition against an assignee for the benefit of creditors to have determined the petitioner’s claim to certain property in the assignee’s possession, and upon the report 6f the referee the clerk entered judgment in favor of the petitioner, and for costs against the assignee. The court, in vacating the judgment, held that the title to the property in question could not be determined in a special proceeding instituted by petition, and that in any event the clerk could not enter a judgment which included costs without a direction by the court, for the reason that there was no statutory provision for costs, and that the question of costs was discretionary with the court. The condemnation law, however, does provide for costs, where the judgment is in defendant’s favor, “at the same rates allowed, of course, to a defendant prevailing in an action in the Supreme Court,” so that there is nothing left to the discretion of the court. The act of entering a judgment on the decision of the court or referee dismissing a petition in a condemnation proceeding is therefore purely ministerial.

It is urged in support of this motion that in a special proceeding no judgment can be entered by the clerk upon the report of a referee without some statute authorizing it. That is undoubtedly correct; but the provisions of the condemnation law already referred to, together with section 3382, seem to expressly provide that in condemnation proceedings the decision of the referee shall direct judgment to be entered in accordance therewith, and that the practice thereon shall conform to the ordinary practice in actions in the Supreme Court.

My conclusion is that the clerk was authorized to enter the judgment, and that this motion should be denied, with $10 costs.  