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.
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 pre-judiced 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 be 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 manner 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?
City of New York v. Matthews,
180 N.Y. 41
Dahlstrom v. Gemunder,
Borough Construction Co. v. City of ...