
    In the Matter of the Application of the New York Central and Hudson River Railroad Company, Respondent, to Acquire Lands of Abner A. Armstrong, Appellant.
    (Argued February 2, 1875;
    decided February 16, 1875.)
    Notice of an order, given before the entry thereof, is ineffectual to limit.the time for appeal. (Code, § 337.) No appeal can be taken until such entry, as notice of appeal must be served upon the clerk with whom it is entered, and the party desiring to limit the time for appeal should notify the opposite party with what clerk it is entered.
    A party undertaking to limit the time for appealing is held to strict practice.
    A General Term order dismissing an appeal on the ground "that notice was served too late is appealable to this court.
    An order appointing commissioners in proceedings by a railroad company under the general railroad act to acquire title to lands situate in C. county, was granted in the county of M., October 30, 1873. On the sixth of November a copy of the order was served by mail on the attorney for the land owners. The latter served notice of appeal May 14th. 1874, stating therein that the order was entered November 11th, 1878. A motion to dismiss the appeal was made upon the notice and other papers. No other proof of the time of entry of the order "appeared. Before the appeal .was taken the commissioners made their report. A copy thereof reciting the granting of the order, was served on the owner, who appeared and opposed the confirmation thereof. An order of confirmation was made but the owner did not accept the compensation awarded. The appeal was dismissed by the General Term. Held, error; that there was no service of notice of the order sufficient to limit the time of appeal, and that the appearance of the appellant, in opposition to the confirmation of the report, was not a waiver of the right of appeal.
    It is only where a party accepts some benefit under an order that he waives his right to appeal therefrom.
    
      Appeal from an order of the General Term of the Supreme Court in the fourth judicial department, dismissing an appeal from order of Special Term appointing- commissioners of appraisal under the general railroad act.
    The lands sought to be acquired by the company were situated in the county of Cayuga. The motion for the appointment of commissioners was made at the Monroe Special Term, and was there granted by an order dated October 30, 1873. The appeal from this order to the General Term was taken by the land owner on the 14th of May, 1874. The notice of appeal describes the order appealed from as having been made at the Special Term held at Rochester on the 30th of October, 1873, and entered in the Cayuga county clerk’s office on the 11th of November, 1873. Before the appeal was taken, the commissioners made their report fixing the amount of compensation to be awarded to the land owner, and an order confirming the report was granted. The land owner appeared by counsel and' opposed the confirmation of the report, but did not accept the compensation awarded him.
    The railroad company, in June, 1874, moved the General Term to dismiss this appeal on the grounds :
    1. That the order was not appealable.
    2. That the appeal was not taken in time.
    3. That the order was acquiesced in by the appellant by appearing in the subsequent proceedings.
    This motion was founded on the notice of appeal, affidavits and other papers. The fact, stated in the notice of appeal, that the date of the entry of the order was November 11, 1873, was not controverted in any of these papers. The affidavits showed that on the 6th of November, 1873, a copy of the order, dated October thirtieth, was served, by mail, on the attorney for the land owner. But they failed to show that any notice of the order was served after its entry. The copy of the order contained in the moving papers was not certified, and there was nothing to.show when it was entered except the notice of appeal on which the respondent founded its motion to dismiss.
    
      H. V. Howland for the appellant.
    The order was appealable. (Laws of 1854, chap. 270, p. 592 ; Rens, and S. R. R. Co. v. Davis, 43 N. Y., 137.) The appeals were brought in due time. (Gallt v. Finch, 24 How., 193; Yorks v. Peck, 17 id., 192; Walton v. Nat. F. Assn., 19 id., 515, 517; Rankin v. Pine, 4 Abb., 309 ; Starring v. Jones, 13 How., 423 ; 3 E. D. S., 215; Code, § 327; 17 Abb., 86; 26 How., 247.) The petitioner did not show it was entitled to the lands. (Laws 1850, chap. 140, §§ 15, 28, sub. 4; R. and S. R. R. Co. v. Davis, 43 N. Y., 137-144; Laws 1869, chap. 260.) It was necessary for it to allege facts which made a case showing the court had jurisdiction under the statute. (Cornell v. Barnes, 7 Hill, 38, note.) The affidavit of the owner denying the sufficiency of the petition was cause for denying the motion. (Laws 1850, chap. 140, § 15 ; Adams v. S. and W. R. R. Co., 10 N. Y., 328; B. and S. L. R. R. Co. v. Reynolds, 6 How. Pr., 96.) Where the legislature has provided for the taking of private property for public use, it becomes a judicial question. (People v. Smith, 21 N. Y., 595; R. and S. R. R. Co. v. Davis, 43 N. Y., 144.)
    
      Edward Harris for the respondent.
    The General Term properly dismissed the appeal. (Laws 1854, chap. 270, §§ 14, 15 ; id., 282; Code, § 332; Ubsdell v. Root, 3 Abb. Pr., 142.)
   Rapallo, J.

The notice of appeal, stating that the order was entered on the 11th of November, 1873, and the respondent having moved upon such notice without controverting its correctness in respect to the date of the entry of the order, that fact must be regarded as conceded. And further, the date of the entry, although stated and relied upon in the appellant’s points, was not controverted on the argument.

As the case stands before us, and as it stood before the General Term, the only notice given of the order, to limit the time for appealing, was served before the entry of the order. It is very clear that such a notice is ineffectual for that purpose. Section 327, of the Code, provides that the appeal must be taken by the service of a notice, in writing, on the adverse party and on the clerk with whom the judgment or order appealed from is entered. No appeal can, therefore, be taken until after the entry of the order with the clerk, and notice of the order cannot, consequently, operate to limit the time for appealing until after such entry. The party desiring to appeal is ribt bound to watch, at the clerk’s office, for the entry of the order. The Code makes it the duty of the adverse party to give notice of such entry. The appealing party should be notified with what clerk the order is entered so as to be informed upon whom to serve the notice of appeal. (19 How. Pr., 517.) If a notice served prior to the entry of the order were sufficient to limit the time for appealing, a party might be cut off from his appeal by his adversary delaying the entry of the order for thirty days after service of the notice. (Gallt v. Finch, 24 How. Pr., 193.)

The counsel for the respondent contends that the service of a copy of the report of the commissioners, which contained, among other things, a recital of the order appointing them, was a sufficient notice of that order. We think not. The copy report is, in no sense, a notice, and it has been repeatedly held that unless the notice prescribed by the Code is given, the time to appeal continues without limitation. Knowledge of the order acquired in any other manner will not limit the time for appealing. Even when the party appealing enters the order himself, the time is not limited unless the prescribed notice is given. (Fry v. Bennett, 16 How. Pr., 402; 7 Abb., 352; 8 id., 310 ; 10 Paige, 370 ; 13 How., 423 ; 4 Abb., 309.) A party undertaking to limit the time for appealing is held to strict practice. (17 How., 192.) Even if the copy report could be held to be a notice it is insufficient. It merely states the making of' the order at the Monroe Special Term on the 30th of October, 1873, but says nothing of its entry in Cayuga county on the eleventh of November.

There can be no question of the appealability of the order. (Rensselaer and Saratoga Railroad Company v. Davis, 43 N. Y., 137.)

The appearance of the appellant in opposition to the subsequent proceedings cannot be regarded as a waiver of the right of appeal. It is only when a party accepts some benefit under an order that he waives his right to appeal from it. It does not appear that the appellant accepted the compensation awarded him, or any other benefit from the proceedings, or that he even took part in the assessment of his damage. He opposed the whole proceeding.

The order of the General Term dismissing appeal should be reversed, with costs.

All concur; Folger, J., not sitting.

Order reversed.  