Opinion
December 28, 1970
In a condemnation proceeding, defendants appeal from two orders of the Supreme Court, Dutchess County, both dated August 6, 1970, one denying their motion (a) to dismiss the petition on the grounds that the court has not subject-matter jurisdiction and the petition fails to state a cause of action (CPLR 3211 [subd. (a), pars. 2, 7]) and that the proceeding has been abandoned; (b) for summary judgment dismissing the petition (CPLR 3212) and (c) to direct the Clerk of Dutchess County to strike out the judgment of condemnation previously entered upon the ground that it was entered without authority in law and in fact; and the other order granting petitioner's motion to fill the vacancies created by resignation of two commissioners of appraisal and to direct the first meeting of commissioners to be held. Prior to the argument of these appeals, respondent moved to dismiss the appeals. By order dated October 21, 1970 we denied that motion, with leave to renew upon the argument of the appeals. Respondent has renewed said motion. First above-mentioned order modified by striking from the decretal paragraph thereof the words "and (b) to direct the Dutchess County Clerk to vacate the judgment of condemnation and order heretofore entered upon the grounds that it was entered without authority in law and in fact" and by adding a decretal provision thereto that so much of defendants' motion as was for such direction to the County Clerk is granted. As so modified, order affirmed, without costs, and proceeding remanded to the Special Term for further proceedings not inconsistent with the views herein set forth. Appeal from second above-mentioned order dismissed, without costs. Respondent's renewed motion to dismiss the appeals denied as to the first above-mentioned order and, as hereinabove indicated, granted as to the second above-mentioned order, without costs. Prior to September 1, 1963, section 19 of the Condemnation Law prohibited any intermediate appeals in condemnation proceedings. "It is now settled", wrote Chief Judge DESMOND on December 31, 1962 "that section 19 * * * means that no intermediate order made in the course of such a proceeding (including an interlocutory judgment of condemnation) is appealable unless it involves a fundamental jurisdictional question as to the petition's sufficiency or a triable issue of fact determination of which against petitioner would render the petition fatally defective" ( Great Neck Water Auth. v. Citizens Water Supply Co. of Newtown, 12 N.Y.2d 167, 173-174). If this were still true it would follow that this court would have jurisdiction only of so much of the appeals herein as concerned the petition's sufficiency, subject-matter jurisdiction and summary judgment and would have to dismiss the appeals insofar as the other relief requested is concerned. However, we hold that the first above-mentioned order is now appealable in its entirety (CPLR 103 [subd. b]; 105 [subd. b]; 5701; Condemnation Law, § 19). Some background will be helpful. In 1901 this court held that a condemnation proceeding was a "special proceeding", not an "action", that it had been specially created by the Legislature for the condemnation of real property and that the whole proceeding formed "an independent and complete system of procedure" ( Erie R.R. Co. v. Steward, 59 App. Div. 187, 188). Accordingly, we concluded that appeals were governed solely by those sections of the old Code of Civil Procedure which were the forerunners of section 19 of the Condemnation Law. "If the Legislature has omitted making any provision for such an appeal," we wrote, "it is clear that none can be taken, for the right of appeal is entirely statutory, and can be taken only from such judgments as are designated expressly or impliedly by the statute authorizing the appeal" (p. 190). Shortly thereafter the Third Department examined the question and followed our lead. "The scheme of law is a complete one", wrote that court Per Curiam, citing Erie ( supra) in dismissing an appeal from the appointment of commissioners of appraisal ( Village of St. Johnsville v. Smith, 61 App. Div. 380, 382). The substance of the provisions relating to appeals in condemnation proceedings was later transferred to section 19 of the Condemnation Law which provided, in pertinent part, that an appeal to the Appellate Division would lie from a "final order". This was interpreted to mean that an appeal would lie only from such an order and, as the cases developed, appeals from all intermediate orders and interlocutory judgments in condemnation proceedings were dismissed save for those presenting jurisdictional questions ( Great Neck Water Auth. v. Citizens Water Supply Co. of Newtown, supra). However, effective September 1, 1963, section 19 of the Condemnation Law was amended by striking the entire provision which stated that an appeal would lie from a final order. The amendment was created by the Laws of 1962 (ch. 310, § 74) as part of a related series of bills intended to conform provisions of the Consolidated Laws with the new Civil Practice Law and Rules. In our view, this has resulted in a modification of the prior rule of nonappealability. The Civil Practice Law and Rules provides a uniform procedure for all special proceedings (CPLR 401 et seq.). This procedure is intended to govern unless there is contrary direction in the statute authorizing the proceeding (Practice Commentary [McLaughlin] on CPLR 103 in McKinney's Cons. Laws of N.Y., vol. §§ 1-500, pp. 12-13). The entire thrust of the reform is to unify and conform, to the extent practicable, the procedure in special proceedings and actions. Accordingly, CPLR 103 (subd. [b]) provides that "Except where otherwise prescribed by law, procedure in special proceedings shall be the same as in actions, and the provisions of the civil practice law and rules applicable to actions shall be applicable to special proceedings", and CPLR 105 (subd. [b]) provides that the word "action" includes in its meaning a "special proceeding". CPLR 5701 contains the provisions relating to appeals as of right to the Appellate Division in an "action". Appeals in general are governed by article 55 of the CPLR. Since the statute authorizing the proceeding — the Condemnation Law — not only does not contain a contrary direction, but was expressly amended to strike a contrary direction and to transfer the statutory authority for the appeal to the CPLR, we conclude that appealability is governed by the latter statute and, by is standards, the first above-mentioned order is appealable in its entirety. However, we can find no authority to permit the interim appeal from the order appointing commissioners of appraisal and we conclude that that order remains non-appealable (CPLR 5701). The sole restriction upon appealability now contained in the Condemnation Law requires the defendant to stipulate not to disturb the plaintiff's possession before his appeal can be heard (Condemnation Law, § 19) and we note that the record herein contains that stipulation. Proceeding to the merits, we find that the petition properly conferred subject-matter jurisdiction upon the court and stated a cause of action and that summary judgment was properly denied. While it is true that a petition in proper form is a jurisdictional prerequisite ( City of Plattsburg v. Kellogg, 254 App. Div. 455), the record does not support the claim that petitioner did not sufficiently engage in good faith negotiations for the purchase of the property and the fact that the petition may fairly be viewed as indefinite in its demand for either an easement or a fee is not a jurisdictional defect. In New Union Tel. Co. v. Marsh ( 96 App. Div. 122, 127) the court said: "It is difficult to determine from the petition whether the plaintiff is seeking to condemn the fee of sufficient ground upon which to erect its pole or only an easement. We think that all the plaintiff needs or can require for its purposes is an easement for its poles in the street and a right of way for its wires and that it should not be permitted to take the fee of any land in the street, but that is a matter which can be regulated by the judgment, and the petition should not be dismissed because it asks for more relief than can properly be granted." However, we think the court erred in refusing to direct the clerk to vacate the judgment of condemnation entered in 1963. Insofar as relevant, the operative facts are as follows: The proceeding was commenced on September 18, 1961 by service of a petition and an application for immediate temporary possession. The petition demanded condemnation of defendant's property for the purpose of expanding electric transmission lines aerially. The matter was referred to a Referee to hear and determine on October 31, 1961 and hearings were held on January 25, 1962 and February 28, 1962. One of the questions of fact for the Referee to determine was whether petitioner required a fee or merely an easement for its wires. However, in his decision filed on January 15, 1963, the Referee failed to indicate with precision his finding on that question. Nevertheless, Justice SUPPLE thereafter, upon an ex parte application, signed the judgment of condemnation granting the fee. Defendant's subsequent motion to vacate and resettle the judgment upon proper notice was denied. There the matter stood until the instant motion in 1970. Although it is admittedly difficult to see how the grant of a fee might be justified in the instant matter, there is no appeal from that judgment currently before us. We merely review the denial of this second motion to vacate the judgment. Because the underlying judgment of condemnation is now appealable we choose not to treat this as a mere motion to reargue but to deal with it on its merits. In our view it was improper for the Special Term to sign a judgment granting relief not properly specified in the Referee's decision. The Referee has since passed away. Accordingly, we direct the vacation of the judgment of condemnation and remand the proceeding for a clear determination as to whether the petitioner requires a fee or an easement. Finally, the Special Term denied the branch of defendant's motion which was to dismiss the petition upon the ground of abandonment. It appears that from the date of the entry of the original judgment of condemnation in 1963 to the date of the motion herein, almost seven years later, the commissioners of appraisal failed to meet once. Part of the delay was occasioned by petitioner's pursuit of a fruitless appeal from an intermediate order involving costs which we dismissed by order dated December 13, 1967. In denying that branch of the motion, the Special Term held that a condemnation proceeding could only be abandoned by a plaintiff (Condemnation Law, § 18) and that, after the entry of the judgment of condemnation and appointment of commissioners, the burden of proceeding fell upon the latter, and either party could have petitioned the court to order the commissioners to proceed. We agree in the result, on different grounds. The motion was in the nature of one to dismiss for failure to prosecute pursuant to CPLR 3216, not for abandonment pursuant to section 18 of the Condemnation Law. Although inartistically drawn, the motion papers properly indicated the nature of the request for relief. Nevertheless, we see no useful purpose to be served by granting the motion at this time, since a new proceeding could be started immediately. However, in so stating we do not propose to condone endless, prejudicial delays. We note that the burden of moving the litigation in condemnation proceedings rests as heavily on the petitioner as in any other proceeding. The defendant's property lies under a cloud created by the proceeding and expedition is required. However, the denial of the motion was basically an exercise of discretion and, although arguable, we affirm the Special Term, particularly where, as here, no useful purpose would be served by granting the motion. The order appointing two substitute commissioners of appraisal for the two who resigned was not appealable before the amendment of the Condemnation Law and the adoption of the CPLR ( Matter of County of Nassau [ Renn], 281 App. Div. 1032; County of Orange v. Storm King Stone Co., 180 App. Div. 208; Erie R.R. Co. v. Steward, 59 App. Div. 187, supra). We do not think it is appealable now. It does not fall within the enumeration of appealable orders contained in CPLR 5701 (cf. De Matteis v. De Matteis, 21 A.D.2d 783; Kelly v. Walsh, 9 A.D.2d 936). Rabin, Acting P.J., Hopkins, Latham, Brennan and Benjamin, JJ., concur.