The opinion of the court was delivered by: BYERS
Motion for judgment of condemnation "and order dispensing with the appointment of Commissioners of Appraisal to appraise the value of Parcels Nos. 1 and 6 taken in this proceeding, and directing that the value of such parcels so taken and the just compensation which should be made for the taking thereof shall be fixed and determined by the Court, after viewing said property and hearing such proofs as to value as may be submitted, upon proper notice to all parties in interest", etc.
Opposition is confined to the quoted portion of the notice.
The proceeding was instituted pursuant to Title 40 U.S.C.A. § 258a, and recourse must be had to §§ 257 and 258 in connection therewith; the latter contains the requirement of conformity in such matters, "as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State within which such district court is held, any rule of the court to the contrary notwithstanding".
Concededly the claimants can be deprived of their property only in conformity with the following provision of the Constitution of the State of New York (Article 1, § 7):
"(a) Private property shall not be taken for public use without just compensation.
"(b) When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by the supreme court without a jury, but not with a referee other than an official referee, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law."
Similar provision was made in the Constitution of 1821, Art. VII, Sec. 7, and later revisions have made no change of substance.
The legislature of the State is thus clothed with the power to prescribe the applicable practice and procedure.
Chapter 73 of the Consolidated Laws of New York (The Condemnation Law) provides that the Court may render a judgment (§ 13) "adjudging that the condemnation of the real property described is necessary for the public use, and that the plaintiff is entitled to take and hold the property 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, * * * and fix the time and place for the first meeting of the commissioners."
If the foregoing were the only embodiment of the legislative selection of procedure, it would follow that only the commission form of proceeding has been sanctioned, but the truth is to the contrary: In Cruger v. Hudson River R. Co., 12 N.Y. 190, the applicable statute provided for a jury trial.
As to the City of New York, the legislature has expressly authorized such proceedings before a Special Term of the Supreme Court of the State for the trial of condemnation proceedings. See Laws of 1934, Ch. 606, §§ 1 and 2, amending Laws of 1909, Ch. 35, §§ 84 and 148, Judiciary Law, Consol.Laws, c. 30.
By the Laws of 1922, Ch. 563, section 970 of the Charter of the City of New York was amended to the same effect; one provision deals with the proceedings authorized before the year 1917, as to which the Board of Estimate was empowered to determine whether compensation in such proceedings was to be determined by the Supreme Court without a jury, or by three commissioners of estimate.
Another provides that, as to proceedings begun after January 1, 1917, compensation is to be determined by the ...