
    In the Matter of the Application of The Metropolitan Elevated Railway Co.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 13, 1893.)
    
    Condemnation proceedings—Default.
    After several adjournments of the hearing before commissioners in condemnation proceedings on account of the failure of the landowner to. appear, the commissioners proceeded to take testimony on the statement of the company’s counsel that he had informed the landowner’s counsel that the matter had been adjourned to that afternoon and the company would then proceed with its proof, and that no answer was returned, and a nominal award was thereafter, made. Held,, that under these circumstances a motion to open the default was properly denied.
    Appeal by Hyman Israel from an award and report of commissioners, awarding six cents compensation for the easements taken from the property, No. 694 Sixth avenue, for the use of the. respondent’s elevated railroad in Sixth avenue, and from order confirming said report.
    
      Kurzman & Frankenheimer (Esek Cowen and John Frankenheimer, of counsel), for app’lt; Edward C. James, for resp’t.
   Follett, J.

This proceeding was begun September 16, 1889, and July 7, 1890, an amended petition was filed. December 2, 1890, the appellant filed an answer, and March 12, 1891, an order was granted, appointing commissioners to appraise the compensation which the respondent should pay to the appellant for the property taken, from which order no"appeal has been taken. On March 21,1891, the date fixed in the order for the first meeting of the commissioners, they met, and took the oath prescribed by the statute, at which meeting the appellant was represented by counsel. The hearing of this and other like proceedings was adjourned to March 26,1891, with the understanding that the commissioners, would hear the proceedings in numerical order, and that, when they were ready to proceed with the respondent’s case, both sides should have notice. September 28, 1892, the commissioners gave the attorneys for the respective parties notice that they would hear the appellant’s case October 3, 1892. On that date the commissioners met, and the counsel for the respondent attended, but the counsel for the appellant did not attend, but sent a note requesting the adjournment until December. The commissioners adjourned the proceedings until the next day, and one of them notified the appellant's counsel, who agreed to be present, but he did not appear. The respondent appeared by counsel. The commissioners then adjourned until October 5th, when the counsel for the respondent appeared, but no one appeared in behalf of the appellant. It was then stated that an agreement had been made between the counsel that the matter should be adjourned until October 11th, to which date an adjournment was had, on which day counsel for the respondent appeared, but there was no appearance for the appellant. The hearing was then adjourned to October 13th. When the commissioners met, counsel for the respondent appeared, but there was no appearance by the appellant. The matter was then adjourned until the afternoon of that day. It was then proved before the commissioners that in the morning of that day the counsel for the respondent gave the counsel for the appellant notice that the matter had been adjourned until half past one of that day, and that the railroad would then proceed with its proof, and that the counsel for the appellant made no reply. On that date the commissioners took the evidence, and on the 18th of October, 1892, signed an award that the appellant was entitled to receive six cents. Thereafter, a motion was made for the confirmation of the report. On the hearing of this motion, counsel for the appellant appeared, and asked to have his default opened, and that he be permitted to try the case before the commissioners. The special term refused to open the default and confirm the award. On looking over the record, we are unable to find any valid excuse for the appellant’s numerous defaults, and we think that he made no case for being allowed to open his default, and try the case before the commissioners. Unusual facilities were offered by the commissioners to the landowner to present his evidence, if he had any, but this he refused to do. We think the special term correctly held that the landowner had not excused his default. There is no evidence in the record which shows that the appellant sustained more damages than were awarded. e The award and order should be affirmed, with costs.

O’Brien and Parker, JJ., concur.  