
    County of Westchester, Respondent, v. The Trustees of the Leake & Watts Orphan House in the City of New York (a Body Corporate), Appellants, Impleaded with Others, Defendants.
    Second Department,
    October 7, 1910.
    Eminent domain — acquisition of easement for sewer purposes — amendment of interlocutory judgment after title vests in condemnor.
    Where under a statute authorizing the condemnation of easements for sewer purposes, title vests in the condemnor on filing the oaths of the commissioners, and, pursuant to a petition asking an easement extending the entire width of a certain parcel, an interlocutory judgment has been entered placing no liraitation on the width ■ of the easement acquired, the court cannot thereafter amend the Judgment so as to diminish the width of the easement and deprive the condemnee of compensation for an easement covering the entire width. Where the State in the lawful exercise of the power of eminent domain takes title from one and places it in another, the court through which it acts may not vacate the title, nor compel- the original owner to receive back the property, nor reapportion it between the parties, nor direct less than full compensation for it in its entirety.
    Appeal by the defendants, The Trustees-of the Leake & Watts Orphan House in the City of New York, from a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of February, 1910, with notice of an intention to bring up for review three orders entered in said clerk’s office on the 15th day of February, 1905, the 17th day of March, 1908, and the 20tli day of May, 1909, respectively, and an interlocutory judgment entered on the 11th day of June, 1908, and also (as stated in the notice of appeal) all proceedings herein prior and subsequent to the said interlocutory judgment of June eleventh.
    
      Ralph E. Prime, for the appellants.
    
      James M. Hunt, for the respondent.
   Thomas, J.:

The proceedings show error only in the order amending the decision and interlocutory judgment, whereby the easement was directed to be taken in a strip of land twelve feet, rather than one hundred feet, in width. Such amendment was beyond the power of the court. The proceedings were to acquire easements in certain of defendants’ land for the construction of a sewer in the county of Westchester, pursuant to chapter 646 of the Laws of 1905, as amended by chapter 747 of the Laws of 1907. Section 6 of the act of 1905 provides: “ In case commissioners to ascertain the compensation to be made to the owners of property to be taken in proceedings for the condemnation of real property shall be appointed, as provided by the Code of Civil Procedure, the county of Westchester shall, on filing the oaths of said commissioners in the office of the county clerk of Westchester county, be and become seized of all those parcels of real estate which are in the maps described as parcels of which it has been determined that the fee or easement therein should be acquired, and the said sewer commissioners may immediately, or at any time or times thereafter, take possession of the same, or of any part or parts thereof; and the said sewer commissioners and their successors or any persons acting under their or its authority may enter upon and use and occupy in perpetuity all the parcels of real estate described in said maps for the purpose of constructing and maintaining on, in, under and over the same, the said sewers and their appurtenances.” The petition states that in the central twelve feet of parcel Ho. 1 “ is a permanent or perpetual easement to be acquired.” The petition as amended omits the limitation to twelve feet, and leaves the application for an easement through the entire width of the parcel, which is one hundred feet. The map (Exhibit 1) shows parcel 1, but does not show limitation of the easement to be acquired to twelve feet thereof. The petition, the decision and the interlocutory judgment describe the strip shown on tlie map as to length and breadth, but place no limitation on the easement therein. Plaintiff's counsel in his affidavit, whereon is based the motion to amend the interlocutory judgment, states that in his opinion the interlocutory judgment does limit the permanent easement in parcel Ho. 1 to the central twelve feet thereof.. Such conclusion, if justitied, would answer objection, ■ but attention is not called to language that sustains it, nor is it aided by the map. The result is that the court, moved by the amended petition, and following the map, determined that a permanent easement in parcel Ho. 1, through the whole width thereof, should be taken, and commissioners were appointed and qualified, and thereupon the county of Westchester became vested with the easement adjudged, with a full right to enter and enjoy it in perpetuity. What was the property of the defendants, upon the happening of the event named by the statute, became the property of the plaintiff. It was in vain that the court amended its judgment so as to direct that the easement be diminished in quantity, and payment made accordingly. The plaintiff had availed itself of a statute whereby it became.the owner of defendants’ property, and was bound to make therefor compensation to be ascertained. It could not rid itself, in whole or in part, of what it had taken. The statute had at its instance been executed, and the court could not aid the plaintiff’s attempted retreat from the obligation assumed. The title of the defendants, unwilling but compelled, had by process of law been carried to the plaintiff. When the State, in the lawful exercise of the power of eminent domain, takes title from one and places it in another, the court, through which it acts, may not vacate the title, nor compel the original owner to receive back the property, nor reapportion it between the parties, nor direct less than full compensation for it in its entirety. In the cases cited by the learned counsel for the plaintiff, the interlocutory judgment was amended before title had passed.

The final order and the order to amend the decision and interlocutory judgment should be reversed, and a new appraisal had before the same commissioners, with costs of this appeal.

Hirschberg, P. J., Woodward, Rich and Carr, JJ., concurred.

Pinal order and order to amend the decision and interlocutory judgment reversed, with costs of this appeal, and a new appraisal directed before the same commissioners.  