
    Tobias Oberfelder, Resp't, v. The Metropolitan Elevated Railway Company et al., App'lts.
    
    
      (Court of Appeals,
    
    
      Filed April 25, 1893.)
    
    Bailboads—Elevated—Evidence.
    Where, after the commencement of an action in the usual form against an elevated railroad, the defendants institute condemnation proceedings for the purpose of acquiring the property interests of the plaintiff in the avenue in front of his lot, and the report of the commissioners of appraisal is confirmed and the order duly entered, the determination as to the value of the property interests of the plaintiff in the avenue is admissible in evidence, and is just as binding upon both parties as though it had been made in an action.
    Appeal from judgment of the New York Superior court, general term, affirming judgment in favor of plaintiff upon a decision after trial at special term.
    
      Brainard Tolies, for app'lts; Justus A. B. Cowles, for resp't
    
      
       Affirming 46 St. Rep., 967.
    
   Earl, J.

The plaintiff owns a lot abutting upon First avenue, in the city of New York, through which the elevated railroad was constructed, and he commenced this action in the usual form to recover damages and for an injunction. At the special term, the court found the rental damages to be §1,580, and the fee damage $1,700, and granted judgment in the usual form in this class of cases.

After the commencement of this action, the defendants instituted condemnation proceedings for the purpose of acquiring the property interests of the plaintiff in the avenue in front of his lot. The proceedings were instituted under the general railroad act of 1850, and the acts amendatory thereof. Commissioners of appraisal were appointed, and, after hearing the parties, they made their report to the supreme court, by which they appraised the value of the plaintiff’s property interests at $1,700. Upon motion of the defendants that report was confirmed by the special term, and an order of confirmation was duly entered. Upon the trial of this action, for the purpose of establishing the value of the property interests of the plaintiff in the avenue, the condemnation proceedings, including the final order of confirmation, were introduced in evidence, and the court held that the defendants were concluded by the value of the plaintiff’s property interests as thus determined. The defendants now complain of this ruling as erroneous, and solely on account thereof seek to have this judgment reversed.

We think the determination in the condemnation proceedings as to the value of the property interests of the plaintiff in the avenue was binding upon both parties. It was a final adjudication in a special proceeding, and the adjudication is just as binding as though it had been made in an action. People ex rel. Hatzel v. Hall, 80 N. Y., 117. There was to be no further judicial action in that proceeding. The claim of the defendants is that it did not become a final adjudication until a certified copy of the order was recorded as required by §18 of the act as amended in 1876. It is true that under that section the defendants would not be vested with the title of the property taken until a certified copy of the order of confirmation was recorded in the county clerk’s office, and the value of the property as determinéd was paid or deposited. That section also provides that if the company prosecuting the condemnation proceedings shall neglect to have the order recorded and make the payment or deposit as required in the section for a period of ten days after the date of the order, then any party to the proceeding interested therein may, at his election, cause a certified copy of the order to be recorded, and thereupon the moneys directed to be paid, with interest from the date of the order, shall be a lien upon the real estate, and may be enforced and collected by action at law or in equity in the supreme court, with costs. It is further provided that the company may abandon the proceedings by filing within thirty days after notice in writing of such recorded order, in the office of the county clerk, a notice of its determination to do so and paying the reasonable costs and expenses of the party, to be ascertained and adjusted by the court making the order. By these provisions there is to be no change of the adjudication contained in the final order. They simply provide for carrying the adjudication into effect, or for its abandonment. The value of the property taken is finally fixed and determined for all purposes, and the adjudication remains in force unless set aside, reversed or abandoned. Here the defendants did not abandon the proceedings, and the order of confirmation is in full force and effect. The value of the property interests of the plaintiff has once been litigated between these parties and determined by a competent tribunal, and we can perceive no reason for taking this case out of the general rule that both parties are concluded by an adjudication thus made.

The judgment should be affirmed, with costs.

All concur.  