
    Matter of the Application of the Purlic Service Commission, Etc., Relative to Acquiring Certain Lots, Etc., at Foot of Montague Street, Etc., Required for Rapid Transit Railroad Known as the Whitehall Street — East River — Montague Street Route.
    (Supreme Court, Kings Special Term,
    January, 1915.)
    Rapid Transit Act — acquisition of land under — additional maps filed nunc pro tunc — when objection by property owners overruled — requirement of statute as to exemptions.
    Where part of the land sought to be acquired under the Rapid Transit Act is situate in one county and part in another, the filing of the map in either is a substantial compliance with the statute, especially if filed in the county wherein the proceeding is instituted.
    The court under the Rapid Transit Act, if necessary, may allow an additional map or maps to be filed nunc pro tunc, and will do so in the order appointing commissioners.
    A petition alleging that “ The estates, rights, terms, privileges, franchises or easements which are to be acquired or extinguished by the City of New York, in and by this proceeding, is an estate in fee simple absolute free from all liens and encumbrances, except as noted in the memorandum attached to and made part of this petition, to all those certain lots, pieces or parcels of land and land under water, with the buildings and improvements thereon and indicated upon said maps or plans and specifically described in said memorandum as Parcel I., required for the purposes of the construction, maintenance and operation of a portion of the rapid transit railroad described in paragraph III. of this petition,” sufficiently shows that petitioner seeks to obtain property in fee simple absolute, and an objection by property owners that the interest in the property sought to be condemned is not clearly and accurately set forth in the petition and the memoranda indorsed on the map must be overruled.
    Under section 59 of the Rapid Transit Act the court may strike out from the maps and memoranda a clause which .fates that there is excepted and excluded from the title to be acquired any right or interest “ owned by the city or state of New York,” as the statute nowhere requires the city to designate specifically .such exemptions.
    As the statute nowhere requires that each owner’s property shall be described as a separate parcel, an objection by an owner that his lands are combined with those of other claimants in the same parcel will be overruled.
    Proceeding for the appointment of commissioners to condemn certain lands.
    Frank L. Polk, corporation counsel, for petitioner.
    Cullen & Dykman, for objectors Pierrepont.
    Davies, Auerbach & Cornell, for objector New York Dock Company.
   Manning, J.

This is a proceeding for the appointment of commissioners to condemn certain lands situate at the foot of Montague street, Brooklyn, the property to be acquired consisting of a parcel of upland and certain land under water, being designated upon the damage map as parcel No. 1.

Two objectors appear in the person of John Jay Pierrepont — representing the Pierrepont estate — and the New York Dock Company. The Pierreponts own the parcel of upland and also a part of the land under water embraced within the lines of acquisition. The New York Dock Company owns no property within the boundary lines of the land to be taken, but they do own an adjoining dock or pier, and by reason thereof claim certain rights, easements, or privileges in or over the waters adjacent to their dock or pier, and also claim that its rights are and may be substantially affected by this proceeding and for that reason they justify their appearance.

The dock company also appeared by their attorney, especially for the purpose of presenting a preliminary objection touching the court’s jurisdiction of the subject matter. They contend that as the Rapid Transit Act provides for the filing of a map in each county where there is a register’s office, the present proceeding is void for the reason that a copy of such map was not filed in New York county (in which county the land under water is concededly situated), and that such failure ousts the court of jurisdiction. The objection does not impress me as being sound and I am free to say that I regard it as highly technical. There is no provision made in the Rapid Transit Act in regard to filing maps in a situation like the present one, that is where part of the land is situate in one county and part in another. I think a substantial compliance with the act is shown when the map is filed in either county and especially if it be filed in the county wherein the proceeding is commenced. The object of filing the map or maps is to give knowledge to those who may be most concerned, and certainly those who appear and contest cannot be heard to say that a failure to file an additional map withholds from them knowledge which reason and common sense "tell us they already have. The present proceeding was properly commenced in Kings county and the map was duly filed in the Kings county register’s office. As I read the petition in the matter the proof is convincing that every jurisdictional requirement of the Rapid Transit Act has been complied with and therefore the objection to the court’s jurisdiction urged by the New York Dock Company is overruled.

If it be at all necessary to file an additional map or maps, full and complete authority is found for such procedure in the Rapid Transit Act, and indeed the court may allow the map to be filed nunc pro tunc and will' do so in the order appointing commissioners.

Both the dock company and the Pierrepont estate further object that the interest in the property sought to be condemned is not clearly and accurately set forth in the petition and in the memoranda indorsed upon the map. This objection also seems unsound. The petitioners seek to obtain the property in fee simple absolute, the broadest and most comprehensive estate known to the law, and it does not need much argument to show that such an acquisition, if consumated, covers every possible right, title, interest, estate, franchise or easement affecting the property acquired. Paragraph VIII of the petition reads as follows:

VIII. The estates, rights, terms, privileges, franchises or easements which are to be acquired or extinguished by the City of New York in and by this proceeding, is an estate in fee simple absolute free from all liens and encumbrances, except as noted in the memorandum attached to and made part of this petition, to all those certain lots, pieces or parcels of land and land under water, with the buildings and improvements thereon and indicated upon said maps or plans and specifically described in said memorandum as Parcel I., required for the purposes of the construction, maintenance and operation of a portion of the rapid transit railroad described in paragraph III. of this petition.”

Under this situation the New York Dock Company will have ample scope and opportunity to appear before the commissioners and prove such rights as they claim to have which in anywise affect the title to the land under condemnation.

The Pierrepont estate urges that because there is attached to the memoranda a clause stating that there is excepted and excluded from the title to be acquired any right or interest “ owned by the City or State of New York,” their position may be prejudiced. I cannot conceive that they are at all in danger by the indorsement in question. But, however, that may be, under the provisions of section 59 of the act, the court, in my opinion, has ample power to amend or strike out the recital, and in fairness to the Pierreponts I will order the objectionable indorsement stricken from the maps and memoranda. The act nowhere requires the city to specially designate such exemptions and, hence, the recital is needless and might give occasion for doubt, uncertainty, or argument.

The Pierrepont estate presents one other objection; that their lands are combined with those of other claimants in the same parcel. In answer to this it is sufficient to say that the act nowhere requires that each owner’s property shall be described as a separate parcel. If it did so require what would be the result in view of the fact that two weeks ’ notice of the application must be given? If one wanted to vitiate the proceeding all that need be done would be to make a deed or deeds of the whole or part of the property sought to be acquired and this plea would accomplish the purpose.

The court has examined with much care and interest the several authorities submitted by the learned counsel for the objectors. Many of these authorities sustain well known legal principles, which are not disputed by the city, but in fact are admitted so far as they apply to the taking of private property for public use, but none of the cases cited, as I read them, go to the extent of withholding jurisdiction in a proceeding based upon a petition so full and complete as the one we are now considering.

The objections are overruled and the motion for appointment of commissioners is granted.

Motion granted.  