Binghamton Opera House Co. v. City of Binghamton

Per Curiam. The plaintiff’s action was in ejectment to recover the possession of certain premises described in the complaint, which the defendant had caused to be taken for street purposes under condemnation proceedings. Those proceedings are attacked as having been illegally conducted, and the claim is that the city gained no rights thereby to the lands affected. The difficulty in the way of maintaining this action consists in certain facts which were found by the trial court. It appears that, after the award had been made for the property in the condemnation proceedings, the award was claimed by the plaintiff, and that its right thereto was disputed by other parties; wli eren pon the city, pursuant to a resolution of the common council, deposited the amount in the custody of the Supreme Court to abide the disposition of the adverse claims thereto, as authorized by section 10 of title 7 of its charter. (See Patterson v. City of Binghamton, 154 N. Y. 391.) It cannot be said that the finding to that effect was not justified, in view of the allegation of the complaint of the facts and the admission in the answer. A further finding is to the effect that, soon after the deposit of the amount of the award, “ the defendant lawfully and with the assent of the plaintiff entered upon the land described in the complaint, pursuant to the resolution of the common coun *656 cil declaring their determination to make such improvement and street, and caused the said street to he opened, worked and used, which was the only possession of the said premises described in the complaint by the defendant.” There was enough in the evidence to support this finding. Such was the opinion of the General Term and it is also ours. The plaintiff deeded to the city its own property, which had been taken under the condemnation proceedings and which next adjoined the property in question, and received the amount awarded therefor, thereby placing the defendant in possession for the purpose of opening the street. They also removed the building from the property in question, electing not to accept the appraised value thereof. These facts referred to appear in the decision of the 'trial judge as having been “ found in pursuance of the stipulation of the respective attorneys in this action, upon the agreed facts in the findings of facts.” In view of the facts thus established, the plaintiff could' not claim to be entitled to maintain an action of ejectment. The plaintiff complains of these findings being in the case, as he does in regard to others, and insists that they should be stricken therefrom, under the terms of a certain stipulation. We can only deal with the case as presented. The case was made by the plaintiff for the General Term and for this court, and if findings are improperly or incorrectly contained therein, it should have moved in the Supreme Court for the correction of the case. That is something yrliich this court cannot do. If, however, as it may be inferred from the briefs, or the argument, the object of the complaint is, in this way, to insure the plaintiff’s right to the disputed award, a ready way for its accomplishment, was provided by the defendant’s charter; as it was pointed out in our opinion in the Patterson Case (supra). We see no reason for reversing the judgment appealed from, and it- must, therefore, be affirmed, with costs. All concur, except Mastín, J., not sitting. Judgment affirmed.