
    The Long Island Railroad Company, Appellant, v. Daniel S. Jones and Others, Respondents, Impleaded with Sarah C. Powell and Others, Defendants.
    Second Department,
    June 7, 1912.
    Eminent domain—condemnation for railroad purposes — pleading — award of immediate possession — section 3380, Code Civil Procedure, construed — answer denying necessity for condemnation — constitutional law — section 3380 Code Civil Procedure is constitutional.
    In condemnation proceedings brought by a railroad company to acquire lands, an answer which merely denies any knowledge or information sufficient to form a belief as to the incorporation of the railroad and the powers conferred upon it by statute is insufficient to raise an issue, for the provisions of section 1776 of the Code of Civil Procedure apply to condemnation proceedings.
    In order that a railroad company, seeking to condemn lands, may be awarded immediate possession on giving the security required by section 3380 oí the Code of Civil Procedure it is not necessary that its right to condemn be first established. Thus, possession may be awarded although the answer puts in issue the necessity for the acquisition of the lands f or public use.
    Grounds upon which the right of a public service corporation to condemn lands may be contested stated, per Burr, J.
    Section 8380 of the Code of Civil Procedure, providing for immediate possession by the condemnor prior to compensation for the lands taken, is not unconstitutional by taking private property for a public use without just compensation, for the constitutional provision does hot require compensation to precede possession, although title does not pass until the compensation is actually received.
    The fact that a defendant in condemnation proceedings does not state in his answer any sum “as the value of the property” does not prevent the court from granting an application for immediate possession and fixing a sum to be deposited as adequate indemnity.
    Appeal by the plaintiff, The Long Island Railroad Company, from so much of an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 3d day of April, 1912, as denies plaintiff’s motion for permission to enter immediately upon the real property sought to be condemned in this proceeding.
    
      Louis J. Carruthers [Joseph F. Keany with him on the brief], for the appellant.-
    
      Hector M. Hitchings, for the respondents.
   Burr, J.:

The Condemnation Law contains this provision:' “When an answer to the petition has been interposed, and it appears to the satisfaction of the court, that the public interests will be prejudiced by delay, it may direct that the plaintiff be permitted to enter immediately upon the real property to be taken, and devote it temporarily to the public use specified in the petition, upon depositing with the court the Sum stated in the answer as the value of the property, and which sum shall be applied, so far as it may be necessary for that purpose, to the payment of the award that may be made, and the costs and expenses of the proceeding, and the residue, if any, returned to the plaintiff, and, in case the petition should be dismissed, or no award should be made, or the proceedings should he abandoned by the plaintiff, the court shall direct that the money so deposited, so far as it may be necessary, shall be applied to the payment of any damages which the defendant may have sustained by such entry upon and use of his property, and his costs and expenses of the proceeding, such damages to be ascertained by the court, or a referee to be appointed for that purpose, and if the sum so deposited shall be insufficient to pay such damages, and all costs and expenses awarded to the defendant, judgment shall be entered against the plaintiff for the deficiency, to be enforced and collected in the same mannér as a judgment in the Supreme Court; and the possession of the property shall be restored to the defendant.” (Code Civ. Proc. § 3380.) The questions presented by this appeal are: First, does the statute authorize the court to award temporary possession of the property where, in condemnation proceedings instituted by. a railroad company, an answer has been interposed which only puts in issue the allegations of the petition as to the necessity for the acquisition of defendant’s lands for public use; and, second, if it does, is such statute constitutional ?

Although the answer denies any knowledge or information sufficient to form a belief as to the incorporation of the plaintiff and the powers conferred upon it by the various acts referred to in the petition, we think that this form of denial is insufficient to raise an issue. (See Code Civ. Proc. § 1776; City of. New York v. Matthews, 180 N. Y. 41; Dahlstrom v. Gemunder, 198 id. 449; Borough Construction Co. v. City of New York, 131 App. Div. 278; Stone v. Auerbach, 133 id. 75; Preston v. Cuneo, 140 id. 144; Olsen v. Singer Mfg. Co., 143 id. 142.) It is true that in the Condemnation Law, which is now a part of the Code of Civil Procedure (§§ 3357-3384), there is no express restatement of the rule contained in section 1776 with regard to the form of pleading in an action necessary to put in issue the fact of corporate existence. But there is a clear indication of a legislative purpose to conform the procedure under the Condemnation Law so far as possible to that in actions and other special proceedings (see §§ 3364-3366, 3368, 3372, 3375, 3376), and it is expressly provided in section 3382 that where the mode or manner of conducting all or any of the proceedings therein is not expressly provided for by law, * * * the practice in such cases shall conform, as near as may be, to the ordinary practice in such court. ” (See Matter of New York, L. & W. R. R. Co., 99 N. Y. 12.) The learned court at Special Term held that as the right of the petitioner to condemn the property in question has not been adjudicated,” no power existed to award temporary possession of the land. This construction not only reads into the statute language not contained therein, but is directly contrary to the clear meaning and intent thereof. If no answer is interposed, and it appears from the petition that plaintiff is entitled to the relief demanded, judgment .is forthwith entered condemning the land and appointing commissioners to ascertain the compensation to he made to the owners thereof. (Code Civ. Proc. § 3369.) If an answer is interposed and the decision goes in favor of plaintiff, a similar judgment is entered, while if judgment goes in favor of defendant the petition is dismissed. (Id.) When no answer is interposed, the Legislature has made no provision for temporary possession, perhaps influenced by the expectation that there should be no considerable delay in determining the amount of compensation to he received by those entitled thereto. That section 3380 contemplates an application between the interposition of an answer and the entry of judgment upon a determination of the issues raised thereby is clear from the provision contained therein, that if judgment goes for the defendant the possession of the property shall be restored to the defendant ” and the sum deposited, or so much as may be necessary, shall be applied to the payment of any damages which he may have sustained by entry upon and use of his property. So' far as plaintiff is concerned, the purpose of the statute is to enable him to proceed at his own expense with the projected improvement pending the determination of his right to condemn, provided he chooses to take- the risk of an unfavorable decision upon that issue, with the consequent loss to him not only of the amount expended in the meantime, but with the certain obligation to make good to defendant all his damage resulting therefrom. This purpose would be defeated if in each instance the right to condemn must first be established. In a condemnation proceeding the issuable facts are those facts which are essential as a basis for the institution of the proceeding.” (City of Geneva v. Henson, 195 N. Y. 447.) The right of a public service corporation to condemn land may be resisted upon several grounds. Among these are, (a) that it is not an existing corporation (Matter of Brooklyn, W. & N. R. Co., 72 N. Y. 245; New York Cable Co. v. Mayor, etc., 104 id. 1); (b) that the Legislature has not conferred upon it the right to exercise the power of eminent domain (Matter of Niagara Falls & W. R. Co., 108 N. Y. 375; Erie R. R. Co. v. Steward, 61 App. Div. 480; affd., 170 N. Y. 172); (c) that the use for which the property is sought is not a public use, or, if so, that it is not the specific public use for which plaintiff was given the power of condemnation (Queens Terminal Co. v. Schmuck, 147 App. Div. 502); or (d) that there is no necessity for the acquisition of the land for such use (Matter of Staten Island R. T. Co., 103 N. Y. 251; Long Island R. R. Co. v. Sherwood, 205 id. 1). All of these are issuable facts. It is hard "to think of a case — in fact none suggests itself to our minds — in which the statute would be available if construed so as to require a determination favorable to plaintiff of either of these basic facts before temporary possession might be given. But defendant contends that when the issue of necessity is raised it cannot be determined that “ the public interests will be prejudiced by delay,” without in effect determining in advance that issue, since, if there is no necessity, public interests will not be affected. To a degree, if not to the same degree, the argument applies also to a case where resistance is made upon either of the other grounds stated. The “public” interests cannot be affected if plaintiff is not a corporation, or has no power of condemnation, or the use is not a public use or is not the specific public use for which the power of eminent domain has been conferred. The statute must, if possible, be so construed as to give it vitality. We think its fair meaning is that when the use specified is a public use and when the court is satisfied that, assuming that the issues raised by the petition and answer will ultimately be decided in plaintiff’s favor, public interests will be prejudiced by the delay necessary to the determination thereof, it may grant the relief asked for. The situation is somewhat analogous to that presented when in an action for equitable relief byway of injunction a provisional remedy by order is granted which, for the time being, affords the same relief sought to be obtained by final judgment; There is a preliminary hearing there which, to some extent, involves the merits. We see no reason for holding that the Legislature intended to except from the beneficial provisions of the act the case when “necessity” was the fact at issue, while making it applicable to every other case.

The constitutionality of this act was considered and its validity sustained in Matter of Niagara, L. & O. Power Co. (111 App. Div. 686), and there is.a dictum' to the like effect in Matter of St. Lawrence & A. R. R. Co. (133 N. Y. 270), where the court said: “The provision made by section 3380 fully satisfies the constitutional obligation.” Viewing it as an original proposition we should reach the same result. Our Bill of Eights contains this provision: “Nor shall private property be taken for public use without just compensation.” (Const, art. 1, § 6.) It does not in express terms require compensation to precede possession, although the title does not pass from the owner until such compensation.is actually received. “ If compensation need not be first made, then the whole matter rests in the discretion of the Legislature, and the right to possession is complete when the conditions precedent imposed by statute have been complied with ” (2 Lewis Em. Dom. [3d ed.] § 833), provided some definite provision is contained therein whereby it is made secure and certain that the owner will ultimately obtain compensation. (Bloodgood v. M. & H. R. R. Co., 18 Wend. 9; Sage v. City of Brooklyn, 89 N. Y. 189; Matter of St. Lawrence, etc., R. R. Co., 66 Hun, 306; Brewster v. Rogers Co., 169 N. Y. 73; Cherokee Nation v. Kansas R. Co., 135 U. S. 641, 659.) The fact that defendant omitted to state in the answer any sum “ as the value of the property ” will not prevent the court from granting the application and fixing the sum to be deposited which shall be adequate indemnity. (Matter of Niagara, L. & O. Power Co., supra.)

The order should be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term to pass upon the merits of the application.

Jenks, P. J., Hirschberg, Thomas and Carr, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and proceeding remitted to the Special Term to pass upon the merits of the application.  