
    (35 Misc. Rep. 601.)
    In re MEAGHER, Commissioner of Public Works.
    (Supreme Court, Special Term, Onondaga County.
    July, 1901.)
    Condemnation—Public Use—Necessity.
    Under Code Civ. Proc. § 3360, subd. 3, and section 3369, requiring a petition in condemnation to allege the public use for which the property is required, and to contain a concise statement of the facts showing the necessity of the condemnation, allegations in the complaint to condemn land for a city park, that the property is required for park purposes, and that the people in that section of the city are desirous that the property should be so condemned, are insufficient, even where no answer has been interposed, for failing to state the situation in the neighborhood, the extent of the population, and such other lacts as bear on the necessity of its use for such purpose.
    In the matter of the application of James H. Meagher, commissioner of public works of the city of Syracuse, for the condemnation of certain real estate for the purposes of a public park. Order for amendment of petition.
    M. Z. Haven, Corp. Counsel, for petitioner.
    William F. Rafferty, for Matilda D. Wells and others, owners.
   HISCOCK, J.

This is an application in behalf of the petitioner, acting for the city of Syracuse, for a judgment providing for the condemnation of certain real estate in the city of Syracuse for the purpose of a public park, and for the appointment of commissioners, etc. No defense or answer has been interposed by the owners of the property, Matilda D. and J. Emmet Wells, or other opposition made to the granting of the application. The statute (Code Civ. Proc. § 33^9) provides that, under such circumstances, if “it appears from the petition” that the petitioner is entitled to the relief demanded, judgment shall be entered adjudging that the condemnation of the real property described is necessary for the public use, etc. The statute further provides (Id. § 3360, subd. 3) that the petition to be presented upon such an application shall set out the “public use for which the propertyis required, and a concise statement of the facts showing the necessity of its acquisition for such use.” The petition presented in this case does not, in my opinion, set out sufficient facts to authorize the court to give the judgment asked for. The only allegation upon this subject is: “The public use for which the property is required is for public park purposes. That the people in that section of the city are desirous of a place to beautify their section and a place for. recreation.” In my judgment, further. facts than this should be set forth in the petition, showing the situation of the neighborhood in which the land sought to be condemned is situated, the extent of the population there, the fact, if it so be, that there is no other sufficient or proper place for the necessary and proper recreation and enjoyment of the people living in that section, and such other facts as may bear upon the necessity of the use of this land for public purposes; for that is the test which the statute applies.

In accordance with these views, an amended petition may be filed, setting out further and additional facts, as required by the statute, or, if preferred by the parties, this court will appoint a referee to take evidence and report upon the subject.

Ordered accordingly.  