In the Matter of the Application of the NEW YORK, WEST CHESTER AND BOSTON RAILWAY COMPANY, Respondent, to Acquire Title to Lands of JOHN OSCAR BALL and ELIZABETH B. BALL, Appellants.
APPEAL by John Oscar Ball and another from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 29th day of September, 1910, confirming the report and award of commissioners of appraisal in condemnation proceedings, with notice of an intention to bring up for review a judgment entered in said clerk's office on the 14th day of February, 1910, condemning defendants' property and appointing commissioners to appraise the same.
A. P. Bachman, for the appellants.
Ralph P. Buell [George S. Graham and Allen Wardwell with him on the brief], for the respondent.
This is an appeal by the defendants from an order of the Special Term of this court confirming the report and award of commissioners of appraisal appointed in proceedings instituted to condemn certain land owned by the defendant John O. Ball for the purpose of the plaintiff's railroad. The defendant Elizabeth B. Ball has no interest in the premises except her inchoate right of dower, although she owns adjoining premises on which is located a dwelling house. The defendants also seek to review by this appeal the judgment appointing the commissioners and condemning the property.
Preliminary to the appointment of the commissioners the learned Special Term tried certain issues of fact raised by the pleadings, and determined among other things that the plaintiff
had been unable, after efforts made in good faith, to agree with the defendants upon a price for the purchase of the premises sought to be condemned. The defendants contend on this appeal that such finding was erroneous. It was necessary for the plaintiff, as a condition precedent to the appointment of commissioners, to prove that it had failed to agree upon a price for the purchase of the property sought to be condemned after an effort made in good faith with the owner of such property to reach such agreement. ( Matter of Lockport & Buffalo R. R. Co., 77 N.Y. 557.) The evidence adduced below sustains the finding of the Special Term. It appears that the plaintiff's president, vice-president and its real estate agent had various conferences with Mr. Ball, and made him many different offers for the property, all of which were refused. The vice-president offered to pay him the highest price that had been paid by the railroad company to the owners of adjoining land. It seems quite evident that Mr. Ball did not desire to sell, but wished to hold the property for residential purposes, and was averse to the proposed proximity of a railroad to the dwelling house on his wife's land. It is now claimed on his behalf that these negotiations do not evidence a failure to agree on a purchase price because the plaintiff's officials did not have power to bind the plaintiff without a specific authorization from its board of directors. That claim is untenable. The by-laws of the plaintiff provide that its president 'shall have general charge of the business of the Company.' Such business would seem to include negotiations for the purchase of a right of way and to authorize the president under the circumstances to conduct the negotiations with the defendant John O. Ball. (See Matter of N.Y. C. & H. R. R. R. Co., 33 Hun, 274, 277; Matter of Prospect Park & C. I. R. R. Co., 67 N.Y. 377.) Be that as it may, however, it appears that no objection to the authority of the plaintiff's officials was made by Mr. Ball during the various negotiations. Under the circumstances I do not think that a formal, specific resolution of the board of directors was a necessary prerequisite to enable the plaintiff's officials to ascertain the impossibility of agreeing upon a price for the purchase of the land condemned.
For the first time the defendants now raise the objection
that one of the commissioners was not a 'disinterested' party within the meaning of section 3369 of the Code of Civil Procedure. The basis of the objection appears to be either that such commissioner is an attorney for the New York Central and Hudson River Railroad Company or that he has tried and argued some cases for that company. It appears that a majority of the plaintiff's stock is owned by the New York, New Haven and Hartford Railroad Company, and it is claimed by the counsel for the defendants that the latter company is 'intimate to a degree well known to all' with the New York Central and Hudson River Railroad Company, and that, therefore, an attorney for the latter company is disqualified to act as a commissioner in condemnation proceedings instituted by the plaintiff, the New York, Westchester and Boston Railway Company. I do not think that the allegations regarding the commissioner and the relations of these railroads, assuming them to be facts, disqualify the commissioner as matter of law. In Matter of Mayor, etc. (20 Misc. 520), it was held at Special Term that one at times in the employ of the city of New York was not disqualified to sit as a commissioner in condemnation proceedings instituted by the city. In Terminal Railway v. Gerbereux (55 Misc. 1) it was held at Special Term that one who had been employed for a time as a ticket seller by a railroad company to which the plaintiff in condemnation proceedings was a related or subsidiary corporation was not disqualified as matter of law from sitting as a commissioner in such proceedings. In Rochester, S. & E. R. R. Co. v. Tolan (116 A.D. 696) the commissioner held disqualified had been engaged by the plaintiff in the condemnation proceedings in the purchase of property for its right of way. No cases, however, appear to have held that a person is disqualified, as matter of ...