In re New York, Lackawanna & Western Railroad

Vann, J.: Tbe petition by which this proceeding was instituted was verified by James T. Hough, who, in tbe affidavit of verification, described himself as tbe general land agent and an officer of tbe petitioner. Upon tbe bearing before tbe Special Term, which resulted in the appointment of commissioners, Mr. Hough testified that be was general land agent of tbe petitioner, and bad charge of securing tbe right of way and other necessary lands along tbe line from Binghamton to Buffalo, and in this sense was an officer of tbe company ; that be was authorized to purchase tbe right of way and bind tbe company therefor, but was not tbe president, secretary, treasurer, or a director. After tbe bearing before tbe referee, and tbe trial before tbe Special Term, tbe objection was made for [152] the first time that this verification was insufficient, because not made by an officer of the company, and that hence the court had not acquired jurisdiction of the proceeding. The verification was regular upon its face. There was no special appearance or preliminary objection made by the appellant, but his first act, after filing an answer, was to consent to the order of reference upon one of the issues. He thus submitted to the jurisdiction of the court, and waived any right to question the sufficiency of the verification. (Matter of Boston, Hoosac T. and W. Ry. Co., 79 N. Y., 64.) By his general appearance, without objection, the jurisdiction of the court would have been complete, even if the petition had not been verified at all. The waiver is not affected by the fact that relying upon the affidavit he believed that the person verifying was an officer, for the court cannot be divested of jurisdiction by discovering that the defendant appeared through' a mistake of fact. It is provided by the general railroad act that the petition shall be signed and verified according to the rules and practice of the Supreme. Court, and by the Code of Civil Procedure, that the verification of a pleading, where the party is a domestic corporation, must be made by an'officer thereof. (2 R. S. [7th ed.], 1549, §14; Code of Civil Pro., § 525.) The statute further provides that there shall be a board of thirteen directors of every railroad corporation, elected by the stockholders, and a. president, treasurer, and secretary, appointed by the directors. No other officer is specified by name,, except the inspectors of election. The directors, however, are authorized to appoint, in addition to the president, secretary .and treasurer, such “ other officers and agents ” as shall be prescribed by the by-laws. (2 R. S., 1546-7, §§ 5, 6.) A general land agent, having general charge of the subject of purchasing lands for all the purposes of a railroad corporation must be regarded as an officer of the corporation, having the right to verify petitions in, proceedings to acquire title to lands. The statute expressly authorizes the appointment of other officers than those n^med therein. The Code provides for the service of. process upon a managing agent. (Sec. 431.) Is not any managing agent presumed to be one of those “ other officers 2 ” What other distinction can be made between “ other officers and agents,” as used in 'the [153] statute, except that those possessing general authority are to be’ deemed officers, and those having limited authority, agents ? The name of the position occupied is of less importance than the power that is exercised. Unless a general land agent is an officer, can a general superintendent, having entire charge of operating a railroad, be deemed an officer? In Glaubensklee v. The Hamburgh and American Packet Company (9 Abb., 104), it was held that a managing agent upon whom a summons had been* served was an officer for the purpose of the action, and authorized to verify the answer. In like manner we think that the general land agent of the petitioner was an officer for the purpose of the proceeding, and authorized to verify the petition. The appellant was not entitled to notice of the proposed route, because the statute provides for such notice only to actual occupants of the land over which the route is designated. (Sec. 22, p. 1554-5.) No provision is made for notice to owners of land required for other purposes than .the construction of the embankment and the laying of the rails. No person, except an occupant or owner of land over which the route passes, feeling aggrieved by the proposed location, can take proceedings to secure an alteration thereof. (Id.) The route designated by the respondent does not pass over any part of the land in question, which lies wholly north of Water street, in which the railroad tracks are to be laid. As no part of the land sought to be condemned is covered by the proposed route, the question arises whether the railroad company can acquire title thereto under the provisions of the general statute. By section 28, subdivision 5, power is given to a railroad corporation to construct its road upon any street, provided the company shall restore such street to its former state,’ or to such state as not unnecessarily to have impaired its usefulness; and provided, also,, that such railroad shall not be constructed in, upon or across any street in a city without the assent of the corporation of such city. (2 R. S. [7th ed.], 1557, 1558.) The common council of the city of Buffalo in authorizing the-construction of this railroad in Water street required the company to construct, maintain and operate a swing bridge across the Evans-ship canal. The city had the power under-its charter to grant this [154] right and to impose this condition. (The N. Y. and H. R. R. Co. v. The Mayor, etc., 1 Hilt., 562; Pierce on Railroads, 247.) In order to comply with it the company was compelled to obtain land over which to swing the bridge when open or it could not operate its road. It was authorized by the thirteenth section of the railroad act to condemn any real estate required for the purposes of its incorporation.' The purpose of its incorporation is to build and operate a railroad for public use. The operation of the road is as essential as its construction. The land in question, therefore, is needed for one of the legitimate purposes of the road; and when the necessity exists and a reasonable discretion is used the courts will not interfere, even if the exercise of the power to take lands under the statute is attended with extreme inconvenience and hardship to individuals. (In re N. Y. Central and H. R. R. R. Co., 77 N. Y., 248; S. C., 63 id., 326; In re N. Y. and Harlem R. R. Co., 46 id., 546.) Whether the company has complied, or is intending to comply,' with the conditions imposed by the city is immaterial in this proceeding. For the breach of a condition subsequent, such as the building of a bridge over the Evans ship canal, there is an appropriate remedy. Such a breach, however, is no defense to this proceeding. The consent of the city to the construction of the road through Watei' street authorizes the company to build its road accordingly, and the right to build the road, as already appears, involves the right to condemn the laud in question. Questions relating to the performance of conditions do not come within the scope of this investigation. Upon the trial before the commissioners thére was no question as to the right of the landowner to damages. The only question was as to the amount of such damages. In other States the rule that the party entitled to unliquidated damages, there being no other issue, has the right to open and close, has been applied to the assessment of damages by commissioners in condemnation cases. (Conn. River R. R. Co. v. Clapp, 1 Cush., 559; Minn. Valley R. Co. v. Doran, 17 Minn., 188; Evansville and C. R. Co. v. Miller, 30 Ind., 209; Charleston, etc., R. R. Co. v. Blake, 12 Rich., 634.) In the Albany Northern Railroad Company v. Lansing (16 [155] Barb., 70) it was held that the subject was within the discretion of the commissioners. Mr. Pierce, in his work on railroads (p. 187), says that the party claiming damages is deemed the actor or plaintiff, and has the right to open and close, whether the petition for an assessment was filed by himself or by the company. We think this is the correct rule. The commissioners are required by the statute (sec. 16) to view the premises described in the petition, and it is claimed that it was irregular in this proceeding, after it had'been summed up and submitted, for them to view the premises the second time, in the absence of counsel. The situation and condition of the lands to be taken, and their relation to other property, are facts of the highest importance in making an estimate of damages. These facts may .be proved, to a certain extent, by' witnesses,' but it is both the privilege and the duty of the commissioners to learn them from actual observation. By command of the statute they must view the premises, and hence ■courts are reluctant to review their award as to amount, because the view thus made cannot be presented on appeal. The view of the premises is, in the nature of' evidence, to be considered by them in making a decision. When they meet for consultation, therefore, .and consider all the evidence in the case, they have the same right to again view the premises that they have to consult their minutes or read an exhibit. Each order should be affirmed, with ten dollars costs and disbursements. Hardin, J., concurred. So ordered.