County of Onondaga v. Estate of Furcinito

Order unanimously affirmed, without costs of this appeal to any party. Memorandum: The statement in the petition that the lands of appellants were appropriated for highway purposes “without access” was not an irremediable defect, if indeed it was a defect. The contents of the petition made it plain that the proposed highway was to be “ controlled-aecess ” (Highway Law, § 117-ib) so that an adjacent landowner could not have access at any place thereon he might choose. At the same time the appropriation map made it clear that the county proposed to permit an access road at or near the easterly boundary of appellants’ lands. The testimony of a county engineer made it equally clear that the location of the access road could not be stated with precision by the county because the placement of such a road was not within its sole jurisdiction. When appellants upon the hearings before the commissioners raised the specious claim that their lands north of the proposed highway were landlocked resulting in consequential damages of many thousands of dollars the court properly permitted an amendment of the petition. If, as stated, there was a defect or irregularity it was correctable. (Civ. Prac. Act, § 105, now CPLR 2001.) The amendment made the petition conform with the map and the effect thereof was to make both speak more precisely and definitely regarding the intent of the county and not to express an intent to appropriate any other, additional, or different lands of appellants or of rights and interests therein. (Matter of Bensel, 140 App. Div. 257, 262.) (Appeal from order of Onondaga County Court directing plaintiff to file an amended petition with map attached indicating property to be taken in fee is without access except along two 60-foot strips.) Present — Williams, P. J., Bastow, Henry, Noonan and Del Vecchio, JJ.