REARGUMENT of an appeal by the defendants, J. Carl Schmuck and others, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 14th day of January, 1910, confirming the report of commissioners of appraisal herein, with notice of an intention to bring up for review an interlocutory judgment of the Supreme Court, entered in the said clerk's office on the 8th day of February, 1908, appointing the commissioners whose report was confirmed.
James S. Darcy [William S. Pettit with him on the brief], for the appellants.
Edward M. Grout [Frank R. Greene and Paul Grout with him on the brief], for the respondent.
The appeal from the order confirming the report of the commissioners of appraisal brings up for review the judgment which appointed them. The right of petitioner to maintain these proceedings lies at the threshold thereof, and may be
Matter of Niagara Falls & Whirlpool R. Co.,
108 N.Y. 375
Matter of Townsend,
39 N.Y. 171
Matter of Deansville Cemetery Association,
Eureka Basin W. & M. Co., 96 id. 42; Matter of Niagara Falls & Whirlpool R. Co., supra; Matter of Split Rock Cable Road Co.,128 N.Y. 408.) Even if the petitioner intends to devote the land acquired to some public use, this alone would not be sufficient. It must be the specific public use, or a part thereof, for which it has received the power to condemn. (Erie R. R. Co. v. Steward,61 A.D. 480; affd., 170 N.Y. 172.) It appears that the town of Hempstead in 1907 conveyed to the corporation known as the Estates of Long Beach certain lands to be used for its private enterprise, and that in connection with the development of its property the Estates undertook to construct a waterway for the purpose of connecting Broad Channel and Dutch Gunning Lead, which are tide waters. The land necessary for this purpose did not belong to the Estates Company, and it is conceded that it had no power to acquire the same in invitum. It, therefore, made a contract with petitioner to do that which the Estates had previously undertaken to do for its own private purpose, but which, lacking the right to exercise the power of eminent domain, it was unable to do. If this is not perfectly clear from the evidence adduced in this case, it is perhaps due to the fact that testimony competent to establish this fact was erroneously excluded. If the act referred to can be sustained as one conferring such power for a public use, it must be upon the ground that the chief corporate purpose of its creation is to improve the waterways within the territory described by the construction of canals which shall be public waterways, and that all other powers in the act expressed are incidental thereto. But by the express provisions of the contract between the petitioner and the Estates Company, the former completely divests itself of any power over the canal to be constructed as soon as it is completed, ...