
    Matter of the Application of the Board or Supervisors or Warren County to Secure the Requisite Right of Way for the Construction and Improvement of Glens Falls-Sandy Hill Road No. 656.
    (Supreme Court, Warren Special Term,
    February, 1908.)
    Eminent domain: Condemnation proceedings; Petition — Sufficiency how questioned — Waiver; Parties — Nonjoinder — Objections — Waiver; Awards — Confirmation — Objections, Who may •' object, Nonjoinder: Who entitled to award, etc.— Payment into court.
    Where, in an application by the board of supervisors to secure the requisite right of way for the construction and improvement of a highway, the parties waived the service and publication of notice as provided by the statute and stipulated that the petition might be presented to a justice of the Supreme Court at a time and place specified, and where, in pursuance thereof, such petition was presented and commissioners were appointed and thereafter the parties further stipulated to waive notice of hearing before the commissioners and proceeded with the hearing without objection, they cannot -thereafter be heard to object to the confirmation of the award made by the commissioners upon the ground of the insufficiency of the petition, or the want of regularity in the proceedings prior to the submission of the matter to the commissioners, or that all interested parties were not joined.
    In proceedings for the condemnation of real property, questions as to the sufficiency of the petition must be raised when the petition is presented and before the order appointing the commissioners is made.
    After the order is made appointing the commissioners in proceedings for the condemnation of real property, there is no further question between the parties except the amount of the damages.
    The wife of one of the parties, who has an inchoate right of dower in the property taken and who is not made a party to the proceeding, cannot be heard to object to the confirmation of the report, as her rights and interests are not affected by the proceeding.
    Nor can the holder of a mortgage upon the property, who is not made a party to the proceeding, be heard to object to the confirmation of the report of the commissioners, as the lien of her mortgage upon the lands sought to be taken will not be released until she consents or her mortgage is paid; but she is entitled to have the award applied to the payment of her mortgage and, for the protection of her rights, the money should be paid into court.
    
      Nor can persons who appear in the proceeding simply as taxpayers and do not ask to be made defendants be heard to oppose the confirmation of the awards, where it does not appear that the finding of the commissioners is contrary to the interests of the taxpayers and no complaint is made that the damages are excessive.
    Motion to confirm report of commissioners.
    Beecher S. Clother, for board, of supervisors.
    James E. Sennett, with Charles B. Patterson, for Patrick Sullivan and Mary Sullivan, his wife.
    F. A. Bratt, for Mrs. Breason, mortgagee.
   Van Kirk, J.

This matter comes now before the court upon a motion for an order confirming the report of the commissioners in the above entitled matter.

‘ On ¡November 25, 1907, there was presented to the undersigned, a justice of the Supreme Court, the petition herein and a stipulation of Beecher S. Olother, attorney for the petitioners, and J. E. Sennett, attorney for Patrick Sullivan, the owner of the lands over which the proposed improvement of the highway is to extend. The stipulation recites that Patrick Sullivan accepts due and personal service of the within petition and waives the service and publication of notice as provided by the statute and further recites that it is stipulated that the petition may he presented to C. C. Van Kirk, justice of the Supreme Court, at his adjourned term to be held in Glens Falls on the 25th day of ¡November, 1907.

In pursuance of siich stipulation, and in the presence of the two attorneys aforesaid, an order was signed appointing Bussell A. Little, John Hogan and II. Prior King, the commissioners agreed upon by the parties, to ascertain and determine the compensation to he made to the owner and to all persons in any manner interested in the real estate described in the petition. On the 30th day of ¡November, 1907, Messrs. Olother, attorney for the petitioners, and Sen-net, attorney for Patrick Sullivan, entered into a stipulation that a hearing may he had in this proceeding on the 30th day of Mqvember, 1907, at one o’clock in the afternoon at the office of Beecher S. Clother, in the Colvin Building, Glens Falls, N. Y., and all notices of such hearing are hereby waived. It appears that the commissioners took their oaths of office and a hearing was had at which Beecher S. Clother appeared for the petitioners and James E. Sennet appeared for Patrick Sullivan and thereupon the evidence relative to the questions at issue for an appraisal of the property was taken; and the commissioners have made their report, dated December 23, 1907, determining that the amount that should be paid to Patrick Sullivan for damages caused by taking the proposed strip of land, including damages to the buildings, is $3,000.

Dpon this motion to confirm the report, the wife of Patrick Sullivan appears specially by her- attorney to take objections to the proceedings. She is not made a party to the proceeding and has not been served with notice herein. She does not ask to be made a party to the proceeding. Mot being made a party, if she has any rights and interests in the real estate in question, they cannot be taken in this proceeding.

Under Moore v. Mayor, 8 N. Y. 110, 112; People v. Adirondack R. R. Co., 160 id. 245, and Matter of Brooklyn Bridge, 75 Hun, 558, I do not think that, in any event, the wife is a necessary party to the proceeding. If the wife has any interest in the real estate, in her inchoate right of dower, it can be amply protected. Code Civ. Pro. §§ 452, 3378. The objections upon her behalf are therefore overruled.

Mrs. Breason, of Argyle, admitted to have a mortgage upon the premises in question, on which there is about $500 unpaid, also appears specially and objects to the jurisdiction of the court, and states that she has had no notice whatever of the proceedings. She is not made a party; she does not ask tó be brought in as a party. Provision can be made in the order for saving her rights and interests without prejudice to her. The court may make the order asked for as between the parties before it. Code Civ. Pro. § 452. Mot being a party to the proceeding, the lien of her mortgage upon the lands sought to be taken will not be released until she consents or her mortgage is paid; and she is entitled to have the award applied to the payment of her mortgage. Grates v. De La Mare, 142 N. Y. 307. The property covered by the mortgage and not affected by this proceeding is worth several thousands of dollars and the award is $3,000.

Mr. Patterson also appears specially for himself and for Mr. Patrick Sullivan, the defendant, as taxpayers, but they do not ask to come in to be made defendants. It is not pos: sible that all the taxpayers in the district to be assessed to raise the amount of the damages fixed in this proceeding are necessary parties in a proceeding to acquire these lands. Hor does it appear that the finding is contrary to the interests of the taxpayers; there is no complaint made to the court that the damages are excessive.

Patrick .Sullivan, as .defendant, appears by Mr. Sennet and Mr. Patterson. So far as the objections apply to the regularity of the proceedings, the defendant Sullivan cannot be heard. Under the stipulations which he has made, he has bound himself to recognize the regularity of the proceedings and the sufficiency of the petition up to the time that the matter was submitted to the commissioners appointed by the court. In open court he appeared when the petition was presented and asked for the appointment of the commissioners stipulated by the parties. The order has been made and those commissioners have acted. He cannot now be heard to attack the regularity of the proceedings or the airfflciency of the petition. Hor can he be heard to object that all interested parties are not joined. He should have raised the objection by demurrer or answer,. He knew of the interest of his wife and of the mortgagee. It is true that the notices required by the statute have not been given, but they have been waived (County of Orange v. Ellsworth, 98 App. Div. 275) ; and, if,it' was the purpose of the defendant to have raised any question as to the sufficiency of the petition, it should have been done in court at the time the petition was presented and before the order appointing the commissioners was made. Ho answer being filed, no issue on the petition is raised, and the right to judgment for condemnation in accordance with the petition is conceded. Code Civ. Pro. § 3369. After the order appointing the commissioners has been made, in such manner that the defendant is bound thereby, there is no further question between the parties, excepting as to the amount of the damages. There is no objection made before the court that the damages in this case are insufficient, or that there was any irregularity in the proceedings before the commissioners, or any error connected with their proceedings calling for reversal on account of the conduct of the appraisers, or that the finding as to damages is not supported by the evidence. By the general appearance of the defendant under his stipulation when the commissioners were appointed, the court unquestionably gained jurisdiction of the person of the defendant. Reed v. Chilson, 142 N. Y. 152, 155.

And he must be deemed to have waived, both by his appearance and his stipulation, any question as to the sufficiency of the notice and any objection as to the sufficiency of the petition. County of Orange v. Ellsworth, 98 App. Div. 275.

It seems to me without question that these lands may be taken for this highway and their condemnation could not be defeated. Since the rights of all claimants can be fully protected in the order, no sufficient cause is shown why the order of confirmation should not be made.

Because the wife of defendant Sullivan and the mortgagee make conflicting claims to the award, or a part of it, the money should be paid into court. Pecksport C. R. Co. v. West, 20 App. Div. 636; Code Civ. Pro. § 3378.

The order confirming the report of the commissioners should be made.

Motion • granted.  