
    The Erie and Jersey Railroad Company, Plaintiff v. Walter H. Brown et al., Defendants.
    (Supreme Court, Orange Special Term,
    December, 1907.)
    Eminent domain — Condemnation proceedings — Judgment — Entry on referee’s report.
    Where in a proceeding for the condemnation of real property an answer is interposed and an order made appointing a referee to hear and determine the issues and the referee’s report disposes of the issues and orders judgment to he entered accordingly, judgment may be entered upon filing the report without further application to the court.
    
      Motion to vacate a judgment.
    Bacon & Merritt, for plaintiff.
    Geo. R. Brewster, for defendants.
   Tompkins, J.

The plaintiff made petition to this court, at Special Term to acquire by condemnation lands owned by the defendants; an answer was interposed and an order made appointing a referee to hear and determine the issues. The report of the referee finds that, upon the petitioner’s evidence, the proceeding was prematurely brought, certain notices required by the statute not having been served, and directs judgment against the plaintiff, dismissing the petition, with costs; and the referee concludes his report as follows: “and I do order judgment to be entered accordingly.”

After the filing of the referee’s report, the clerk entered judgment in accordance therewith; and this motion' is made by the defendants to vacate said judgment on the- ground that the clerk had no power to enter judgment on the report of the referee without direction by the court. Section 3367 of the Oode of Oivil Procedure provides that in condemnation proceedings “The court shall try any issue raised by the petition and answer at such time and place as it- may direct, or it may order the same to be referred to a referee to hear and determine, and upon such trial the court or referee shall file a decision in writing, or deliver the same to the attorney for the prevailing party, within twenty days after the final submission of the proofs and allegations of the parties, and the provisions of this act relating to the form and contents of decisions upon the trial of issues of fact by the court or a referee, and to making and filing exceptions thereto * * * and to the powers of the court and referee upon such trial, shall be applicable to a trial and decision under the title.”

It seems from this section to have been the intention of the Legislature to confer upon a referee, appointed under the Condemnation Law, the same power to hear and determine and direct judgment that a referee has who is appointed to hear and determine the issues in an action; and section 3369 provides that “ Judgment shall be entered pursuant to the direction of the court or referee in the decision filed.” Here, the referee made and filed his decision in which he directs judgment against the plaintiff, dismissing the petition, with costs; the clerk then clearly had power, and it was his duty under the provision of section 3369, above quoted, to enter judgment in accordance therewith.

While it is true that it was held in Potter v. Durfee, 44 Hun, 197, that no judgment should be entered in a special proceeding without the direction of the court, yet that was a proceeding by petition against an assignee for the benefit of creditors to have determined the petitioner’s claim to certain property in the assignee’s possession. Upon the report of the referee, the clerk entered judgment in favor of the petitioner, and for costs against the assignee.

The court in vacating the judgment held that the title to the property in question could not be determined in a special proceeding instituted by petition and that, in any event, the- clerk could not enter a judgment which included costs, without a direction by the court, for the reason that there was no statutory provision for costs and that the question of costs was discretionary with the court. The Condemnation Law, however, does provide for costs, where the judgment is in defendant’s favor, at the same rates allowed, of course, to a defendant prevailing in an action in the Supreme Court,” so that there is nothing left to the discretion of the court.

The act of entering a judgment on the decision of the court or referee, dismissing a petition in a condemnation proceeding, is, therefore, purely ministerial. It is urged in support of this motion that in a special proceeding no judgment can be entered by the clerk, upon the report of a referee, without some statute authorizing it. That is undoubtedly correct, but the provisions of the Condemnation Law already referred to, together with section 3382, seem to expressly provide that, in condemnation proceedings, the decision of the referee shall direct judgment to be entered in accordance therewith, and that the practice thereon shall conform to the ordinary practice in actions in the Supreme Court.

My conclusion is that the clerk was authorized to enter the judgment, and that this motion should he denied, with ten dollars costs.

Motion denied, with ten dollars costs.  