
    Matter of the Application of the City of Buffalo to Acquire Lands for the Purpose of Opening and Laying Out a Street, etc., From Tifft Street to Altruria Street.
    (Supreme Court, Erie Special Term,
    January, 1907.)
    Eminent domain — Condemnation proceedings — Wo tice—Sufficiency of publication.
    The provisions of section 420 of the charter of the city of Buffalo requiring the publication of notice of application for the appointment of commissioners in proceedings to acquire lands for streets “for two weeks * * * at least ten days before the time when the application is to be made ”, a publication beginning seventeen days before the day named for the application in the notice is insufficient; and leave to file proof of such a publication nunc pro tunc will be denied.
    Motion on the part of the city of Buffalo for an order permitting it to file nunc pro tunc an affidavit of notice of service of an application for the appointment of commissioners.
    William B. Frye, for city of Buffalo.
    Daniel J. Kenefick and Wallace Thayer, for property owners.
   Wheeler, J.

This is a motion on the part of the city for an order permitting it to file nunc pro tunc an affidavit showing the service by mail of notice of application for the appointment of commissioners in these proceedings. It is vigorously opposed by counsel for certain landowners affected on the ground that, for various reasons advanced, the entire proceedings are void. It is argued the court ought not to lend its aid toward sustaining any proceeding so circumstanced. Among the objections urged is one that the city failed to give the notice required to be given by section 420 of the city charter of its application to the court for the appointment of three commissioners to ascertain the just compensation to be paid for the lands to be taken. The section requires such notice to be given “ by publishing such notice daily for two weeks in the official paper, by leaving a copy thereof at each inhabited building on such lands with a person of full age, and by serving a copy thereof personally on each person who, by the records of the Erie county clerk’s, office, appears to be the owner or mortgagee of such lands or any part of them, or by depositing it in the post office in the city with postage prepaid, addressed to him at Buffalo at least ten days before the time when the application is to be made.”

The record shows the application to the court was made on the 13th day of July, 1905, and that notice of this application was published in the official paper. The first publication of this notice was on June 23, 1905, and the last publication on July tenth, the original day named in the notice for application for the appointment of commissioners, although the proceeding was continued and the commissioners were appointed on the thirteenth of July. It thus appears that the last publication of notice was made on the very day named for application to the court. Such publication was not a compliance with the requirements of the section of the charter quoted. This section, or one identical in its language and provisions, was the subject, of judicial construction in the case entitled Matter of Widening Carlton Street, 16 Hun, 500, and the court there held that the publication of the notice must be complete before the ten days begin to run, so that a party interested, who might chance to see the notices on or near the last day of its publication, might still have time to procure himself to be represented before the court at which the commissioners are appointed. The court says the case is analogous to the service by publication of a summons, in which case it is held that the twenty days to answer do not commence to run until the expiration of the six weeks’ publication. Doughty v. Hope, 1 N. Y. 79; Westwood v. Nilley, 47 id. 457.

The Carlton Street case was affirmed in 78 N. Y. 362, although on other grounds. The rule laid dora in the Carlton Street case is recognized and approved in Matter of Pennie, 45 Hun, 395, and same case reported on further-appeal in 108 N. Y. 373. The defect in the want of time between the completion of the publication of notice of application for the appointment of commissioners and their appointment is absolutely fatal to all the subsequent proceedings.

This court would he disposed, under ordinary circumstances, to grant leave to file nunc pro tunc an affidavit showing a compliance with the charter in other respects; but the other defects are so vital to the awards made and to any assessments which may he based upon them, and the consequences to the city are so serious if further steps are permitted with these proceedings as a basis, that it seems the clear duty of the court to even deny the motion here made, which is done, without costs.

Ordered accordingly.  