
    In the Matter of the Application of Calvin T. Hemenway, as Sole Trustee of School District No. 9 of the Town of New Lebanon, Columbia County, N. Y., Respondent, to Acquire Title to Certain Land Lying Within Said School District in Said Town of New Lebanon, Owned by John M. Schoonmaker, Appellant, and Mary Schoonmaker, the Wife, if any, of said John M. Schoonmaker, the Name “Mary” Being Fictitious, Her True Name Being Unknown to the Plaintiff.
    Third Department,
    September 15, 1909.
    Schools — eminent domain — condemnation of lands for school purposes —procedure — designation of lands taken — consent of school commissioners — appeal.
    Where lands are taken for school purposes whether the district be a new one and the site is required to be designated pursuant to subdivision 7 of section 14 of title 7 of chapter 556 of the Laws of 1894, or whether the district be an old one to which section 19 of-said title of the act is applicable, the new site must be chosen by a written resolution describing the lands by metes and bounds, adopted at a special meeting called for that purpose.
    There is a failure to comply with the statute when the notice for a special meeting contained a description of three sites which were to be considered and there was no written resolution adopting a particular site other than an entry on the minutes of the clerk. Letters indicating that the school commissioner was Of the opinion that a change was desirable are not equivalent to his consent in writing to a change to a specific location, as required by section 19 of title 7 of the statute.
    It cannot be claimed that a new school district is laid out so as to make the consent of the school commissioner unnecessary, where the district was altered nine years before and at least two school commissioners have been elected since that time.
    A defective condemnation of lands for school purposes caiinot be sustained on the ground that the remedy of the landowner is an appeal under the Consolidated School Law, for in order to acquire the lands for school purposes the statute must be complied with.
    Appeal by the defendant, John M. Schoonmaker, from a final order of the% Supreme Court, made at the Albany Special Term, bearing date the 10th day of April, 1909, and entered in the office of the clerk of the county of Columbia, with notice of an intention to bring up for review a judgment bearing date the 4th day of August, 1908, and entered in said clerk’s office, upon the report of a referee in a proceeding to condemn lands for school purposes.
    
      Henry H. Merchant [Rollin B. Sanford of counsel], for the appellant.
    
      Noah H. Browning [Samuel B. Coffin of counsel], for the respondent.
   Smith, P. J.:

In the notice of appeal the appellant has given notice of his intention to review the judgment of condemnation. His contention is that the conditions prescribed by the law to authorize the condemnation of his property have not been complied with. By chapter 556 of the Laws of 1894 whether the district be a new one and the site be designated- in pursuance of subdivision 7 of section 14 of title 7 of that chapter, or whether the district be an old one to which section 19 of said title is applicable, the requirement of the law is that the new site must be chosen at a special meeting called for such purpose, and must be chosen by a written resolution in which the proposed site must be described by metes and bounds. It seems clear that no such proceeding was taken at' the special meeting at which the defendant’s property is claimed to have been designated as the site for the schoolhouse. A notice was sent out which contained a description of three sites which were to be considered at the special meeting. There was no written resolution offered for the adoption of the site in question. The only evidence of its adoption is the entry in the minutes of the clerk. If such an entry were all that the Legislature deemed necessary the requirement of the statute that the site be chosen by a written resolution would hardly have been made.

Nor has the respondent here the consent in writing of the school commissioner as required by section 19 of title 1 of the statute. Some letters were produced which indicate an opinion on the part of the school commissioner that a change was desirable. The consent required by the statute, however, is a written consent to a change to a specific location. No such consent appears in the papers.

To avoid the force of this objection it is claimed that this is a new district, and, therefore, the consent of the school commissioner is not required. It is true that the district was altered some nine years before. At least two school commissioners have been elected since that time, and this cannot be claimed within a fair construction of the statute to be the designation of the site for a new district.

The respondent cannot sustain this proceeding upon the grotmd that the remedy of the landowner is an appeal under the Consolidated School Law. (See Laws of 1894, chap. 556, tit. 14.) In order to take appellant’s property by right of eminent domain the school authorities must comply with the conditions the statute prescribes, and until then the landowner may legally object to the condemnation of his property.

Without considering other objections made to this judgment, the final order and judgment, for the reasons stated, must be reversed, the referee discharged and a new trial granted, with costs to appellant to abide the event.

All concurred.

Final order and judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellant to abide event.  