authorized by this act to appoint a person to discharge the same duties. Until he is removed, or his office or place becomes otherwise vacant, the provisions of this act apply to him, and to the discharge of his duties. The court, officer, or officers, authorized by this act to appoint a person to an office or employment, may from time to time fill a vacancy therein.

See Id., § 14.

3355. [Am'd, 1882.] When this act deemed to have been passed, etc.

For the purpose of determining the effect of the different provisions of this act with respect to each other, they are deemed to have been enacted simultaneously. For the purpose of determining the effect of this act upon other acts, and the effect of other acts upon this act, chapters fourteen to twenty-two of this act, both inclusive, are deemed to have been enacted on the twelfth day of January, in the year 1880, and all acts passed after the last-mentioned date are to have the same effect as if they were passed after those chapters.

New. Am'd by L. 1882, c. 399.

3356. When this act takes effect.

Subject to the qualifications contained in the foregoing sections of this title, this act shall take effect as follows: titles third and fourth, and article first of title fifth of chapter tenth, on the first day of May, in the year 1877; the remainder of chapters first to thirteenth, both inclusive, on the first day of September, in the year 1877; chapters fourteenth to twenty-first, both inclusive, on the first day of September, 1880; and this chapter immediately.'

The first thirteen chapters of the Code (including §§ 1-1495) were enacted by L. 1876, c. 448. Chapters fourteen to twenty-two (including §§ 1496 to 3356) were enacted by L. 1880, c. 178.

978

CHAPTER XXIII.

Added by L. 1890, c. 95. In effect May 1, 1890.]

Supplemental Provisions.

TITLE I. Proceedings for the Condemnation of Real

Property.

TITLE II.— Proceedings for the Sale of Corporate Real Property.

TITLE I.

Proceedings for the condemnation of real property..

Sec. 3357. Title.

3358. Definitions.

3359. Proceeding to be taken as prescribed in this title.

3360. Petition to be presented; contents thereof.

3361. Notice annexed to petition; when petition and notice served. 3362. How petition and notice served.

3363. Appearance of infant, idiot, lunatic or habitual drunkard. 3364. Appearance of parties generally.

3365. Answer; contents thereof.

3366. Verification of petition or answer.

3367. Trial; case; exceptions.

3368. Certain provisions of code applicable.

3369. Judgment; costs to defendant; commissioners.

3370. Powers and duties of commissioners.

3371. Confirmation or setting aside of report; deposit, when deemed a payment.

3372. Offer to purchase; costs; additional allowance.

3373. Judgment, how enforced; delivery of possession of premises; when writ of assistance to issue.

3374. Abandonment and discontinuance of proceeding.

3375. Appeal from final order; stay of proceedings.

3376. Appeal by plaintiff to appellate division of Supreme Court.

3377. Court may direct a new appraisal.

3378. Conflicting claimants.

3379. Plaintiff in possession may have stay of proceedings on giving

security.

3380. Temporary possession pending proceedings.

3381. Notice of pendency of action to be filled.

3382. Practice in cases not herein provided for.

3383. Repealing clause; limitations.

3384. When act takes effect.

§ 3357. [Added, 1890.] Title.

This title shall be known as the condemnation law. Added by L. 1890, c. 95.

§ 3358. [Added, 1890; am'd, 1896.]

66

Definitions.

66

The term person," when used herein, includes a natural person and also a corporation, joint-stock association, the state and a political division thereof, and any commission, board, board of managers or trustees in charge or having control of any of the charitable or other institutions of the state; the term real property," any right, interest or easement therein or appurtenances thereto; and the term "owner," all persons having any estate, interest, or easement in the property to be taken, or any lien, charge, or incumbrance thereon. The person instituting the proceedings shall be termed the plaintiff; and the person against whom the proceeding is brought, the defendant.

Id. Am'd by L. 1896, c. 589 (in effect May 12, 1896).

§ 3359. [Added, 1890.] scribed in this title.

Proceeding to be taken as pre

Whenever any person is authorized to acquire title to real property, for a public use by condemnation, the proceeding for that purpose shall be taken in the manner prescribed in this title.

Added by L. 1890, c. 95.

§ 3360. [Added, 1890; am'd, 1896.] sented; contents thereof.

Petition to be pre

The proceeding shall be instituted by the presentation of a petition by the plaintiff to the supreme court, setting forth the following facts:

1. His name, place of residence, and the business in which engaged; if a corporation or joint-stock association, whether foreign or domestic, its principal place of business within the state, the names and places of residence of its principal officers, and of its directors, trustees or board of managers, as the case may be, and the object or purpose of its incorporation or association; if a political division of the state, the names and places of residence of its principal officers; and if the state, or any commission or board of managers or trustees in charge or having control of any of the charitable or other institutions of the state, the name, place of residence of the officer acting in its or their behalf in the proceedings.

2. A specific description of the property to be condemned, and its location, by metes and bounds, with reasonable certainty.

3. The public use for which the property is required and a concise statement of the facts showing the necessity of its acquisition for such use.

4. The names and places of residence of the owners of the property; if an infant, the name and place of residence of his general guardian, if he has one; if not, the name and place of residence of the person with whom he resides; if a lunatic, idiot, or habitual drunkard, the name and place of residence of his committee or trustee, if he has one; if not, the name and place of residence of the person with whom he resides. If a non-resident, having an agent or attorney residing in the state authorized to contract for the sale of the property, the name and place of residence of such agent or attorney; if the name or place of residence of any owner cannot after diligent inquiry be ascertained, it may be so stated with a specific statement of the extent of the inquiry which has been made.

5. That the plaintiff has been unable to agree with the owner of the property for its purchase, and the reason of such inability. 6. The value of the property to be condemned.

7. A statement that it is the intention of the plaintiff, in good faith, to complete the work or improvement, for which the property is to be condemned; and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding.

8. A demand for relief, that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaintiff is entitled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners for the property so taken.

Added by L. 1890, c. 95. Am'd by L. 1896, c. 589 (in effect May 12, 1896).

§ 3861. [Added, 1890.] Notice annexed to petition; when petition and notice served.

There must be annexed to the petition a notice of the time and place at which it will be presented to a special term of the supreme court, held in the judicial district where the property or some portion of it is situated, and a copy of the petition and notice must be served upon all the owners of the property at least eight days prior to its presentation.

Added by L. 1890, c. 95.

§ 3362. [Added, 1890.]

How petition and notice served. Service of the petition and notice must be made in the same manner as the service of a summons in an action in the supreme court is required to be made, and all the provisions of articles one and two of title one of chapter five of this act, which relate to the service of a summons, either personally or in any other way, and the mode of proving service, shall apply to the service of the petition and notice. If the defendant has an agent or attorney residing in this state, authorized to contract for the sale of the real property described in the petition, service upon such agent or attorney will be sufficient service upon such defendant.

In case the defendant is an infant of the age of fourteen years or upwards, a copy of the petition and notice shall also be served upon his general guardian, if he has one; if not, upon the person with whom he resides.

Id.

8863. [Added, 1890.] Appearance of infant, idiot, luzatic or habitual drunkard.

If a defendant is an infant, idiot, lunatic or habitual drunkard, it shall be the duty of his general guardian, committee or trustee, if he has one, to appear for him upon the presentation of the petition and attend to his interests, and in case he has none, or in case his general guardian, committee or trustee fails to appear for him, the court shall, upon the presentation of the petition and notice, with proof of service, without further notice, appoint a guardian ad litem for such defendant, whose duty it shall be to appear for him and attend to his interests in the proceeding, and, if deemed necessary to protect his rights, the court may require a general guardian, committee or trustee, or a guardian ad litem to give security in such sum and with such sureties as the court may approve. If a service other than personal has been made upon any defendant, and he does not appear upon the presentation of the petition, the court shall appoint some competent attorney to appear for him and attend to his interests in the proceeding.

Id.

§ 3364. [Added, 1890.] Appearance of parties generally. The provisions of law and of the rules and practice of the court, relating to the appearance of parties in person or by attorney in actions in the supreme court, shall apply to the proceeding from and after the service of the petition, and all subsequent orders, notices and papers may be served upon the attorney appearing and upon a guardian ad litem in the same manner and with the same effect as the service of papers in an action in the supreme court may be made.

Id.

§ 3365. [Added, 1890.] Answer; contents thereof.

Upon presentation of the petition and notice with proof of service thereof, an owner of the property may appear and interpose

an answer, which must contain a general or specific denial of each material allegation of the petition controverted by him, or of any knowledge or information thereof sufficient to form a belief, or a statement of new matter constituting a defence to the proceeding.

Id.

§ 3366. [Added, 1890.] Verification of petition or answer. A petition or answer must be verified, and the provisions of this act relating to the form and contents of the verification of pleadings in courts of record, and the persons by whom it may be made, shall apply to the verification.

Id.

§ 3367. [Added, 1890.] Trial; case; exceptions.

The court shall try any issue raised by the petition and answer at such time and place as it may direct, or it may order the same to be referred to a referee to hear and determine, and upon such trial the court or referee shall file a decision in writing, or deliver the same to the attorney for the prevailing party, within twenty days after the final submission of the proofs and allegations of the parties, and the provisions of this act relating to the form and contents of decisions upon the trial of issues of fact by the court or a referee, and to making and filing exceptions thereto, and the making and settlement of a case for the review thereof upon appeal, and to the proceedings which may be had, in case such decision is not filed or delivered within the time herein required, and to the powers of the court and referee upon such trial, shall be applicable to a trial and decision under the title.

Id.

§ 3368. [Added, 1890.] Certain provisions of code applicable.

The provisions of title one of chapter eight of this act shall also apply to proceedings had under this title.

Id.

§ 3369. [Added, 1890; am'd, 1895.] defendant; commissioners.

Judgment; costs to

Judgment shall be entered pursuant to the direction of the court or referee in the decision filed. If in favor of the defendant. the petition shall be dismissed, with costs to be taxed by the clerk, at the same rates as are allowed, of course, to a defendant prevailing in an action in the supreme court, including the allowances for proceedings before and after notice of trial. If the decision is in favor of the plaintiff, or if no answer has been interposed and it appears from the petition that he is entitled to the relief demanded, judgment shall be entered. adjudging that the condemnation of the real property described is necessary for the publ use, and that the plaintiff is entitled to take and hold the prop erty for the public use specified, upon making compensation therefor, and the court shall thereupon appoint three disinterested and competent freeholders, residents of the judicial district embracing the county where the real property, or some part of it, is situated. or of some county adjoining such judicial district, commissioners to ascertain the compensation to be made to the owners for the property to be taken for the public use specified, and fix the time and place for the first meeting of the commissioners. Provided, however, that in any such proceeding instituted within the first or second judicial district, such commissioners shall be residents of the county where the real property, or some part of it, is situated.