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and 136 New York State Reporter recognized in our own jurisdiction (see Bergen v. Wyckoff, 84 N. Y. 659), but this power is exercised only to prevent a failure of justice where the delay is solely attributable to the court. The Arkansas authorities &ited by the appellants clearly recognize said limitation upon the court's power (see Pool v. Loomis, 5 Ark. 110; Samuel v. Cravens, 10 Ark. 381); and in the case of Jennings v. Ashley, 5 Ark. 128, also cited by the appellants upon this proposition, it was held that judgment could not be entered nunc pro tunc where a party had died before submission of the case, even though after interlocutory judgment if a writ of inquiry was necessary. In the case at bar the jurisdiction of the court to render the nunc pro tunc judgment after the death of the party is sought to be supported by the recital in the judgment that the cause was argued and submitted at the May term, 1894, and by the court taken under advisement. This recital is contradicted by the preliminary recital, to wit: "On this day comes F. R. Lapier

and this cause comes on for final hearing on the cross-bill and exhibits and the depositions of said Lanier," etc.

It is also disproved by the judgment of May, 1894, which shows that, instead of taking the case under advisement, the court dismissed the cross-bill. It is also inconsistent with the position taken by the appellants that the questions respecting the Corbin Banking Company raised by Lanier's cross-bill remained pending and undetermined. If the question was submitted to the circuit court at said May term, it was decided adversely to Lanier. If it was not submitted to said court, but remained pending and undetermined, it came before the chancery court as an original question, and it is quite plain that it was so treated by said court. Thus considered the chancery court had no jurisdiction of the parties except the action were revived against the personal representatives of the deceased party. And, if absolute verity is accorded the recitals of the judgment sued on, the appellants are in no better situation, because, if it is true that the cause was submitted to and taken under advisement by Judge Riddick in May, 1894, Judge Robertson could not render a judgment in 1899 upon said submission, but a mistrial resulted upon Judge Riddick's ceasing to be a circuit judge. Thus the appellants are in the position of having to depend upon a recital which, if true, establishes the want of jurisdiction in the court to render the judgment sued on.

It may be conceded, as argued by the appellants, that the judgment cannot be attacked collaterally for irregularities, but it is only conclusive upon the general question involved in the action or proceeding concerning which the court had the power to adjudge. Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Smith v. Central Trust Co., 154 N. Y. 333, 18 N. E. 553. The court rendering the judgment in suit had no jurisdiction to adjudicate upon the general question involved in the action. Its attempted exercise of power was, therefore, a nullity, and the judgment rendered does not import verity even respecting the recitals of fact which go to the question of jurisdiction. Thompson v. Whitman, 18 Wall. (U. S.) 457, 21 L. Ed. 897.

The judgment should be affirmed, with costs. All concur.

(52 Misc. Rep. 311) PEOPLE ex rel. PHENIX ASSUR. CO., LIMITED, OF LONDON, v. O'DON

NEL et al., Tax Com’rs. (Supreme Court, ecial Term, New York County. November, 1906.) COSTS-REVIEW OF ASSESSMENT-CERTIORARI.

Laws 1896, p. 883, c. 908, as amended by Laws 1905, p. 536, c. 281, provides that in proceedings to correct a tax assessment, if the assessment be reduced more than one-half the reduction claimed before the assessing officers, costs and disbursements shall be awarded, but shall not exceed those taxable in an action on the trial of an issue of fact in the Supreme Court. Under Code Civ. Proc. $ 977, where an issue of fact does not arise, it is unnecessary to serve a notice of trial. In certiorari to review an assessment, the return admitted its illegality, and defendants served on relator's attorney a written offer to allow a final order directing the cancellation of the assessment, with $25 costs. The offer was rejected, and the relator's attorney served a notice of trial. When called for trial the corporation counsel moved for an order for cancellation, with $25 costs. Held, that there was no issue of fact, and therefore plaintiff was not en. titled to a trial fee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Costs, 8 613.]

Certiorari by the people, on the relation of the Phænix Assurance Company, Limited, of London, against Frank A. O'Donnel and others. Order granted.

Rumsey, Shepard & Ingalls (David Rumsey, of counsel), for relator.

William B. Ellison, Corp. Counsel (William H. King, of counsel), for defendants.

GIEGERICH, J. This certiorari proceeding was brought to review an assessment of $578,200 made by the defendants for the year 1905 on the relator's personal property; the petition alleging that the assessment is erroneous in the entire amount, in that the defendants had proceeded contrary to law in fixing the assessment. Precisely the same question was presented in other proceedings theretofore brought to review assessments for the year in question made against certain insurance companies, which resulted in the cancellation of the assessments. The return admits the illegality of the assessment in suit, and the defendants served upon the attorneys for the relator, with the return, a written offer to allow a final order to be taken and entered herein by the relator adjudging that the assessment is illegal and erroneous, and directing that it be canceled, with $25 costs to the relator. Such offer was not accepted and the relator's attorneys served upon the corporation counsel a notice of trial and notice of motion for a preference. The proceeding was placed upon the preferred calendar, and when reached in its regular order the corporation counsel conceded that the relator was entitled to a final order canceling the assessment, and moved for such order, with $25 costs. The relator, on the other hand, urged that it was entitled to full costs, and the only question which arises is with respect to the amount of costs which should be awarded.

Costs in these proceedings are regulated by section 254 of the tax law (Laws 1896, p. 883, c. 908), as amended by chapter 281, p. 536, of the Laws of 1905, which, so far as applicable, provides:

*

and 136 New York State Reporter

If the writ shall be quashed or the assessment confirmed, or if the assessment complained of shall be reduced by an amount less than half the reduction claimed before the assessing officer, costs and disbursements shall be awarded against the petitioner. If the assessment shall be reduced by an amount greater than half the reduction claimed before the assessing officers, costs and disbursements shall be awarded against the tax district represented by the officers, whose proceedings may be reviewed. The costs and disbursements shall not exceed those taxable in an action upon the tria! of an issue of fact in the Supreme Court.

The corporation counsel contends that under the foregoing provisions the amount of costs is discretionary with the court; but, without passing upon the point, I am of the opinion that the relator is entitled to no more costs than offered by the defendants, viz., $25. The return does not deny any of the allegations of the petition, nor does it set up any new matter. On the contrary, it admits that the assessment is illegal. An issue of fact did not, therefore, arise, and hence the service of a notice of trial was neither necessary nor proper. Code of Civil Procedure, § 977; Cohen v. Cohen, 72 Hun, 393, 25 N. Y. Supp. 387. There was thus no issue of fact to try; the application for a final order to cancel the assessment being merely made upon the return pursuant to section 253 of the Tax Law, which provides : "If it shall appear upon the return

that the assessment complained of is illegal or erroneous or unequal for any of the reasons alleged in the petition, the court may order such assessment, if illegal, to be stricken from the roll."

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In this view there was no trial of an issue of fact, and consequently the plaintiff is not entitled to a trial fee.

My conclusion, therefore, is that the relator is entitled to a final order canceling the assessment, with $25 costs.

(117 App. Div. 305)

UNITED TRACTION Co. v. FERGUSON CONTRACTING CO. et al. (Supreme Court, Appellate Division, Third Depa ent. January 1907.) 1. EMINENT DOMAIN-APPROPRIATING LAND FOR CANAL.

Laws 1903, p. 337, c. 147, § 4, provides that the state engineer may enter on and take possession of and use lands the appropriation of which, for improvement of state canals, shall in his judgment be necessary; that he shall make a survey and map of such lands, and certify that they have been appropriated for such use; that the map, survey, and certificate shall be filed in his office, and duplicates in the office of the superintendent of public works; that such superintendent shall then serve on the owner of the land so appropriated notice of such filing: that from the time of the service of such notice the entry on and appropriation by the state of such land for such improvement, shall be deemed complete, and such notice shall be conclusive evidence of such entry and appropriation; and that the Court of Claims shall have jurisdiction to determine the amount of compensation for the land appropriated Held, that the filing of the map, survey, and certificate, and the giving of such notice', are essential fur an appropriation which will authorize the land to be entered on and used for the canal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 161.)

2. INJUNCTION-RIGHT OF LESSEE AGAINST TRESPASSER.

The lessee of the structures, rights, and franchises of a street railroad, being liable to the lessor for injury thereof, may, even if his interest be only personalty, maintain injunction against an unauthorized entry on the land and injury of the structures.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, $ 77.] Appeal from Special Term, Saratoga County,

Action by the United Traction Company against the Ferguson Contracting Company and others. From a judgment sustaining demurrers of defendants Wood and Hamilton to the complaint, plaintiff appeals. Reversed.

The defendants are constructing the barge canal under a contract with the state, made in pursuance of chapter 147, p. 332, of the Laws of 1903. The line of the canal thus to be constructed extends across Saratoga avenue, in the village of Waterford. The complainant alleges that the defendants have constructed the canal up to the east and the west sides of said Saratoga avenue, and are about to excavate through Saratoga avenue, in said village of Waterford, a canal ditch 30 feet deep and 100 feet wide, and, further, “that no proceeding of any kind has been taken or any notice served, by the state or by any of its officers, to appropriate any part of the said railroad, or any property or property rights connected therewith, on said Saratoga avenue, for canal purposes, or for any other purpose."

The plaintiff is operating an electric trolley line upon and over Saratoga avenue at the point in question. It is operating this line as the lessee of the Troy & Lansingburgh Railroad Company of all the structures, rights, and franchises of said company. The said Troy & Lansingburgh Railroad Company was itself the lessee of such structures, rights, and franchises from the Waterford & Cohoes Railroad Company, which is the owner of such structures and the original grantee of the rights and franchises necessary for the construction thereof. The relief sought is a permanent injunction restraining the defendants from entering upon the said Saratoga avenue and excavating the same, or in any way interfering with the structures or rights of the plaintiff.

The defendants Wood and Hamilton demurred to the complaint for insufficiency. This demurrer was sustained at the Special Term, and the interlocutory judgment entered from which this appeal was taken. Further facts appear in the opinion.

Argued before SMITH, CHESTER, KELLOGG, and COCHRANE, JJ.

Patrick C. Dugan (Lewis E. Carr, of counsel), for appellant.

Edgar T. Brackett (William S. Ostrander, of counsel), for respondent.

SMITH, J. Chapter 147, p. 332, of the Laws of 1903, makes provision for the improvement of the Erie Canal. This improvement contemplates in some places a variation from the line of the canal as it now exists, requiring the appropriation of new and additional land. By section 4 of that act it is provided that the state engineer may enter upon and take possession of and use “lands, structures and waters, the appropriation of which for the use of the improved cana's and for the purposes of the work and improvement authorized by this act, shall in his judgment be necessary.” He is required to make an accurate survey and map of all such lands and annex thereto his certificate that the lands therein described have been appropriated for the use of the canals of the state. Such map, survey, and certificate and 136 New York State Reporter must be filed in the office of the state engineer, and a duplicate copy thereof filed in the office of the superintendent of public works. The superintendent of public works is thereupon required to serve upon the owner of any real property so appropriated a notice of the filing and the date of filing of such map, survey, and certificate in his office, which notice shall also specifically describe that portion of such real estate belonging to such owner which has been so appropriated. It is further provided :

"From the time of the service of such notice, the entry upon and the appropriation by the state of the real property therein described for the purposes of the work and improvement prorided for by this act, shall be deemed complete, and such notice so served shall be conclusive evidence of such entry and appropriation and of the quantity and boundaries of the lands appropriated. * * * The Court of Claims shall have jurisdiction to determine the amount of compensation for lands, structures and waters so appropriated."

By section 13 (page 342) of the act the sum of $10,000,000 is appropriated, to be paid upon the presentation of the draft of the superintendent of public works, for work done upon the contracts "or on the presentation of awards by the Court of Claims for compensation for lands appropriated as provided in section 4 of this act or damages caused by the work of improvement hereby authorized." Chapter 335, p. 879, of the Laws of 1904 provides for the appointment of three special examiners and appraisers, whose duty it shall be to agree, if possible, with the owners “of such lands, structures and waters or property rights pertaining thereto," and recites that upon such agreement the Comptroller will pay therefor the sum agreed upon.

In Van Alstine v. Belden, 41 App. Div. 123, 58 N. Y. Supp. 521, it is held:

"Where a contractor, engaged in improving the Erie Canal under a contract with the state of New York, piles earth upon private land adjacent to the canal, which the state has taken no proceedings to appropriate, the contractor, and not the state, is liable for the trespass."

In that case is construed section 70, c. 338, p. 635, of the Laws of 1894, which is precisely similar as to the mode of acquiring property as the act here in question. The opinion in part reads:

*This brief epitome of two or three of the several enactments relating to the accession of lands for canal purposes shows the trend of the Legislature has been to place in definite, systematic shape the method to be pursued in making the appropriation. In the first place, the power was vested in the canal commissioners, without any restriction as to the form in which they exercised that power. Their ipse dixit seemed to be all that was essential. Later, in the development of the method of acquiring these lands, the Legis. lature required the making of a survey and the filing of a map of the lands to he appropriated, and the service of a notice containing a description of them upon the owner or occupant, as a prerequisite to the appropriation of the lands. This method relieved the state from liability arising from the acts of irresponsible contractors and assumed agents, and assured the owner the state was to award compensation for the lands taken. The drift of this legislation is to fix liability upon the state when these preliminaries have been accomplished. Hayden v. State. 132 N. Y, 533, 30 V. E. 961; Yaw v. State, 127 X. Y. 190, 27 N. E. 829; City of Syracuse v. Stacey, 86 Hun, 441, 33 N. Y. Supp. 929; Waller v. State. 144 N. Y. 579, 39 N. E. 680; Matter of St. L & A. R. R. Co., 133 N. Y. 270, 31 N. E. 218."

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