
    In the Matter of the Application of the People’s Railroad Company of Syracuse for the appointment of Commissioners, etc.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Street railroad—Construction of—Laws 1884, chap. 252—Applica-tion FOR APPOINTMENT OF COMMISSIONERS.
    A street railroad company organized under Laws 1884, chapter 252, can make several applications ior the appointment of commissioners to determine whether the railroad ought to he constructed and operated, etc., in regard to particular streets named in the petition, provided such streets, are also named in the articles of association as being streets through which, it is proposed to construct, maintain and operate the railroad.
    2. Same—Effect of application in regard to less than all the streets —Who proper parties.
    If the proceeding be taken in regard to but one street, or any number of •streets less than the total contained in the articles of association, those only who are interested in the property along the streets in regard to which the petition is presented, are proper parties; and no determination made by such commissioners can bind, or in any manner affect, other property owners along other streets not mentioned in the petition.
    3 Same—Sufficiency of petition—When failure to obtain consent-of requisite number of property owners shown by petition.
    The petition alleges facts enough to show that the company had failed to obtain the consent of the owners of more than one-half in value of the-property on the slreets named in the petition, when it is accompanied by affidavits showing a list of the property owners, who had been applied to- and had refused to consent to the construction of the road in front of and along their respective premises, a list of the streets in which the persons so applied to live and the valuation in each street of the property owned hy the persons so refusing; the petition itself showing the total valuation of the property on that portion of each of the streets mentioned along which the company proposed to construct its road; and it appearing therefrom that the refusals to consent represented more than one-half of the total valuation.
    4. Same—Mot necessary to state that consent of local authorities HAD BEEN FILED IN THE COUNTY CLERK’S OFFICE.
    It is not necessary that the petition should state that the consent of the local authorities had been filed in the county clerk’s office as a condition, precedent to the application for the appointment of commissioners.
    Appeal from an order of the supreme court, general term, fourth department, granting the prayer in the petition.
    
      Louis Marshall, for appl’t; Martin A. Knapp, for. resp’t.
    
      
      Affirming 48 Hun, 617, mem.
      
    
   Per Curiam.

The People’s Railroad Company of Syracuse isa corporation organized under “An act to provide for the construction, extension, maintenance and operation, of street surface railroads, and branches thereof in cities, towns and villages,” passed May 6, 1884, and the laws supplementary thereto. The company was organized and incorporated to construct, maintain and operate a street surface. railway in the city of Syracuse,_ along and upon various streets designated in their articles of incorporation-Rot having obtained the requisite consent of the property owners for the construction of their road through certain streets of the city the company applied by petition to the supreme court for the appointment of three commissioners, pursuant to the provisions of the act above-mentioned, to determine whether the railroad ought to be constructed and operated along certain streets mentioned in the petition, which petition did not include all the streets through which the company was formed to construct, maintain and operate its road.

Rue notice of its intention to apply for such appointment of commissioners was given to the owners of property along certain streets through which it was alleged the company had failed to obtain the requisite amount in value of consents. But no notice of such application for the appointment of commissioners was given to any of the owners of-property along the other streets mentioned in its articles of incorporation, and which were not included in the petition above mentioned.

Application was made pursuant to the petition and notice of its presentation, to the general term of the supreme court, and upon such application various property owners along the streets, named in the petition appeared through counsel and opposed the granting of such application.

The grounds upon which such opposition was founded were several, the chief of which were that the general term acquired no jurisdiction to appoint the commissioners because it did not appear from the petition whether or not the necessary consent of the property owners had been obtained upon the various streets through which it was proposed to construct the railroad, other than those mentioned in the petition; and also that the petition did not allege facts showing that the petitioner had failed to obtain the consent of the owners of more than one half in value of the property upon the streets which were named in the petition.

It is now claimed that the act contemplates but one application by any company organized under it, to the court for the appointment of commissioners, and that in such application it must appear that the failure of the company to obtain the necessary amount in value of consents of property owners in the streets mentioned in the petition, includes all the streets wherein the company by its charter will claim the right to go, in which such failure exists, and that as to all the other streets, consents to the necessary amount have been obtained, and that all those interested as property owners in the question must be made parties. So that the determination of the commissioners when confirmed by the court is to be a final one in regard to all the streets •through which the company intend, or by its charter may have power, to run its tracks.

. Both of these grounds of objection were overruled at the general term; the commissioners were appointed and reported in favor of the construction of a railroad through -those streets which were named in the petition, and the report was confirmed by the general term, and from such order of confirmation the property owners along such streets have appealed to this court.

They have here argued through counsel questions of law only, claiming that the orders of the general term appointing the commissioners, and subsequently confirming their report, were made without jurisdiction and are consequently void. ■

The first ground taken by the learned counsel for the property owners, that the act contemplates but one application, and that everybody interested, in all the streets, who have not consented, must be made parties, we do not think is tenable. A careful perusal of the act convinces us that there is nothing to prevent several applications in • regard to particular streets named in the petition, provided such streets are also named in the articles of association as being streets through which it is proposed to construct, maintain and operate the railroad. If the proceeding be ■'taken in regard to but one street, or any number of streets less than the total contained in the articles of association, those only who are interested in property along the streets in regard to which the petition is presented, are proper parties. And no determination made by such commissioners can bind, or in any manner affect, other property owners along other streets not mentioned in the petition, and who, if subsequent proceedings should be taken for the appointment of commissioners to determine as to the construction of the road through their streets, would have the right to oppose the granting of the petition, or the making -of the determination by the commissioners, wholly irrespective of any previous determination made by other commissioners in other proceedings in relation to other streets. We are unable to see that any evil results would flow from such a position.

The other ground taken by counsel for the property owners, that the petition is defective and confers no juris•diction, because it does not allege facts showing that the -company failed to obtain the consent of the owners of more than one-half in value of the property on the streets named in the petition,- we think, is equally untenable. • Counsel cites as sustaining his views, Matter of Broadway Underground Railway Company (23 Hun, 693), Matter of Broad way Surface Railway Company (36 Hun, 644), Matter of New York Cable Railway Company (id., 355).

We have examined each of the above-cited cases and are of the opinion that they are not in principle opposed to the validity or sufficiency of the petition in this case. In those-cases the affidavits contained no statement that any effort had been made at any time to obtain the consent of the persons owning property, but a general statement was inserted that some of the owners declined to consent, and that consents of others could not be obtained by reason of their absence, and that application had been made therefor diligently and in good faith. There was nothing to show what had been done or the names of the persons to whom application had been made, or the amount of the holding of each person or the total amount of the property owned on the street.

One of the many affidavits in this case, which are substantially alike, shows a list of the property owners who-had been applied to and had refused to consent to the construction of the road in front of and along their respective-premises. It also gives a list of the streets in which the persons so applied to live, and the valuation in each street of the property owned by the person so refusing; and the petition shows the total valuation of the property on that portion of each of the streets mentioned along which the-company proposed to construct its road, and it appeared therefrom that the refusals to consent represented more-than one-half on the total valuation.

We think that was enough. It would be difficult to say more, unless the affidavits should give the conversations had with the various property owners to whom application was made in which they refused to give such consent.

One other ground was taken that the petition was defective, because it failed to show that the consent of the local authorities was filed in the office of the clerk of the county of Onondaga. This we also think is of no weight. The petition alleges that the consent of the common council of the city of Syracuse, was duly given on or about the 27th day of July, 1887, for the construction and operation of the railroad. The petition was dated December 24, 1887, and notice of its presentation was given for the 10th of January, 1888.

There is nothing in the act that we see making it necessary to state that such consent had been filed in the clerk’s office as a condition precedent to the application for the appointment of commissioners. Indeed, it would seem from the provisions of the 4th section of the act that application for the appointment of commissioners might precede the giving of any consent by the local authorities; as it is provided in such section that any consent given by such local authorities, shall cease and determine at the expiration of one year thereafter, unless prior' to the expiration of such period, the company obtaining such consent shall have filed the consent of the requisite amount in value of the property owners, or the determination of the commissioners confirmed by the court as therein provided.

The order of the general term should, therefore be affirmed with costs.

All concur.  