
    Lent et al. v. New York & M. Ry. Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    1. Parties—Joinder—Eminent Domain.
    The report of commissioners appointed to appraise land taken by the right of eminent domain awarded a large sum to the owner, and a small sum to another, as special guardian of the owner. The general term, in affirming the appraisal, made the whole amount payable to the guardian. Held that, though the guardian could sue on the award in his own name alone, under Code Civil Proc. N. Y. § 449, authorizing a trustee of an express trust to sue without joining the person for whose benefit the action is prosecuted, yet it was proper, under section 446, providing that all persons interested may be joined as plaintiffs, to join the owner as plaintiff.
    2. Eminent Domain—Commissioners’ Award—Action on.
    If a railroad company, which has condemned land under the right of eminent domain, elects, after the report of the commissioners, to proceed and procure the confirmation of the report, the relation of vendor and vendee is established, and the company is bound to pay the award; and this rule is not abrogated by Laws N. Y. 1876, c. 198, amending Laws 1850, c. 140, § 18, [3 Bev. St. (Sth Ed.) p. 1745, ] and providing that, if the company neglects to record the order confirming the award, and to make payment or deposit for 10 days after the date of the order, any party may record a copy of the order, and the moneys directed to be paid shall be a debt against the company, except that the company may abandon the proceedings by filing a notice to that effect within'30 days after written notice of the recorded order, etc.
    Appeal from special term, Dutchess county.
    Action by John B. Lent and Henry M. Taylor, special guardian of John B. Lent, against the New York & Massachusetts Railway Company, on an award of commissioners of appraisal of land condemned by defendant. Judgment for plaintiffs, and defendant appeals. Code Civil Proc. N. Y. § 446, provides that all persons interested in an action may be joined as plaintiffs. Section449 provides that a trustee of an express trust may sue without joining the person for whose benefit the action is prosecuted. Laws 1850, c. 140, § 17, [3 Bev. St. (8th Ed.) p. 1745,] provides for the making and entry by the court of an order confirming the award of the appraisers. Section 18 provides that a certified copy of the order shall be recorded at full length, etc. The amendment of May 3, 1876, (Laws 1876, c. 198,) provides that if the company shall neglect to record the order, and to make the payment or deposit for 10 days after the date of the order, any party to such proceedings, and interested therein, may cause a copy of the order to be recorded; and thereupon the moneys directed to be paid shall be a debt against the company, except that the company may abandon such proceedings by filing, within 30 days after notice in writing of the recorded order, a notice of abandonment.
    
      Homer A. Nelson, for appellant. Henry M. Taylor, for respondents.
   Dykman, J.

This is an action upon the award of commissioners appointed to determine the compensation to be made to John B. 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 land of John E. Lent; the appointment of three commissioners for that purpose; and the appointment of Henry M. Taylor, one of the plaintiffs, as special guardian of John R. 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 R. 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. Tayior, 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, (Railroad Co. v. Lent, 4 N. Y. Supp. 88,) 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 R. Lent and a cause of action in favor of Henry M. Taylor, as special guardian of John R. 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 section 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 R. Lent, to whom it belonged. While, therefore, Mr. Taylor might maintain the action alone under section 449 of the Code, yet as John R. 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. Medburg, 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. In re Railroad Co., 67 N. Y. 242. In our view, this salutary principle has not been abrogated or affected by the amendment of May 3, 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.  