
    In the Matter of the Application of the Village of Canton, New York, Respondent, v. Melvin S. Allen, Appellant.
    Third Department,
    November 14, 1917.
    Eminent domain — condemnation proceedings — temporary possession not awarded where answer has not been interposed.
    Where, in a proceeding for the condemnation of land, the defendant appeared upon the return day of the petition, but did not interpose an answer, the statute does not authorize the court to award temporary possession of the property.
    Appeal by the defendant, Melvin S. Allen, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 10th day of May, 1917, permitting plaintiff to take possession of the premises sought to be condemned.
    
      George E. Van Kennen, for the appellant.
    
      Lawrence Russell, for the respondent.
   Sewell, J.:

This proceeding was commenced to, condemn certain land, water and water rights owned by the defendant. The defendant appeared in the proceeding upon the return day of the petition but did not interpose an answer. Judgment of condemnation was entered and the court appointed three commissioners to ascertain the compensation to be made to the owner for the property and fixed the time and place for the first meeting of the commissioners.

On the same day an order was made granting an application for immediate possession of the property.

The only question presented by this appeal is, does the statute authorize the court to award temporary possession of the property where no answer has been interposed.

It was expressly held in New York Central & H. R. R. R. Co. v. Reusens (151 App. Div. 458) that where the defendant fails to answer the court is without power to award immediate possession. The court there said: “ It is to avoid the delay before the entry of judgment, not that subsequent thereto, that section 3380 of the Code of Civil Procedure is directed.”

The order appealed from should be reversed, with ten dollars costs.

All concurred, except Kellogg, P. J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  