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liens or incumbrances upon such rights, titles and interests as the said co missioner may see fit to make. A copy of such petition, with a notice of the time and place the same will be presented to the supreme court, must be served on all persons whose interests are to be affected by the proceedings at least ten days prior to the presentation of the same to the said court.

and no

1. If the person on whom such service is to be made resides in this service of state and is not an infant, idiot, or person of unsound mind, service of petition a copy of such petition and notice must be made on him, or his agent tice. or attorney, authorized to contract for the sale or surrender of the real estate described in the petition, personally, or by leaving the same at the usual place of residence of the person on whom such service must be made as aforesaid with some person of suitable age.

2. If the person on whom such service is to be made resides out of the state, and has an agent residing in this state, authorized to contract for the sale or surrender of the property described in the petition, such service may be made on such agent, or on such person, personally, out of the state, or it may be made by publishing the notice, stating briefly the object of the application and giving a description of the property to be taken or affected, in the state paper, and in a paper printed in the county in which the real estate taken or affected is situated, once in each week for one month next previous to the presentation of the petition; and if the residence of such persons residing out of this state, but in any of the United States, or any of the British colonies in North America, is known, or can, by reasonable diligence, be ascertained, the said commissioner must, in addition to such publication as aforesaid, deposit a copy of the petition and notice in the post-office, properly folded and directed to such person at the postoffice nearest his place of residence at least two weeks before presenting such petition to the court, and pay the postage chargeable thereon in the United States.

3. If any person on whom such service is to be made is under the age of twenty-one years, and resides in this state, such service shall be made as aforesaid on his general guardian, or if he has no such guardian, then on such infant, personally, if he is over the age of fourteen years, and if under that age, then on the person who has the care of such infant, or with whom such infant resides.

4. If the person on whom such service is to be made is an idiot, or of unsound mind, and resides in this state, such service may be made on the committee of his person or estate, or if he has no such committee, then on the person who has the care or charge of such idiot or person of unsound mind.

5. If the person on whom such service is to be made is unknown, or his residence is unknown and cannot by reasonable diligence be ascertained, then such service may be made under the direction of the court by publishing a notice, stating the time and place the petition will be presented, the object thereof, with a general description of the property to be affected by the proceedings, in the state paper, and in a paper printed in the county where the property is situated, once in each week for two weeks previous to the presentation of such petition. 6. In case any party to be affected by the proceedings is an infant, idiot or person of unsound mind, and has no general guardian or committee, the court shall appoint a special guardian or committee to attend to the interests of such person in the proceedings; but if a general guardian or committee has been appointed for such person in this state, it shall be the duty of such general guardian or committee to

Commissioners to assess

damages.

Commissioners to take oath.

attend to the interests of such infant, idiot or person of unsound mind, and all notices required to be served in the progress of the proceedings, may be served on such general or special guardian or committee.

7. In case the people of this state, or any county of this state or any town in this state, or any common school district within this state, or any corporation organized under the laws of this state, shall own, occupy or enjoy any real estate which is to be acquired or affected in carrying into effect the purposes of this act, such notice and petition may be served in the manner herein before prescribed, upon the following officers respectively: upon the clerk to the commissioners of the land office, in behalf of the people of the state; upon the clerk of the board of supervisors of any county, in behalf of such county, and upon the supervisor of any town, and the commissioners of highways in any town, in behalf of such town; upon the trustees of any school district, in behalf of such district; and upon the acting chief executive officer of any corporation, in behalf of such corporation.

8. In all cases not herein otherwise provided for, service of orders, notices and other papers in the special proceedings authorized by this act, may be made as the supreme court shall direct.

5. On presenting such petition to the supreme court as aforesaid, with proof of service of a copy thereof and notice as aforesaid, all or any of the parties whose estates or interests are to be affected by the proceedings may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it. The court shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, it shall make an order for the appointment of three disinterested and competent freeholders, who reside in the county (or some adjoining county), where the property to be appraised is situated, commissioners to ascertain and appraise the compensation to be made to the parties interested in the real estate proposed to be taken or affected or theretofore taken or affected in such county for the purposes indicated in this act, and to fix the time and place for the first meeting of the commission

ers.

§ 6. The said commissioners shall take and subscribe the oath prescribed by the twelfth article of the constitution. Any one of them Witnesses. may issue subpoenas and administer oaths to witnesses, and any such witness sworn and examined and testifying falsely shall be deemed guilty of perjury, and shall be liable to the pains and penalties imposed by law for that offense. Such subpoenas may be served within this state by any person and must be served by any sheriff or constable when thereunto required; in case of the failure or refusal of any witness so subpoenaed to obey such subpoena, or to answer any question or to produce any books or papers when thereunto required by a majority of the said commissioners, the commissioners, or a majority of them, shall report such failure or refusal to a justice of the supreme court in said the judicial district, in which such commissioners were appointed before whom the same proceedings shall thereupon be had, as though such failure or refusal were that of a witness duly subpoenaed to appear and testify upon the trial of an action before such justice, and such justice shall in all respects proceed as though such subpoena had issued out of the court in which he presides; a majority of such commissioners may adjourn the proceedings before them, from time to Notice of time, in their discretion. Whenever they meet, except by appointment of the court, or pursuant to adjournment, they shall cause reasonable

meeting.

notice to be given to the parties interested, or their agent or attorney. They shall view the property described in the petition, and hear the View. proofs and allegations of the parties, and reduce the testimony taken by them, if any, to writing, and after the testimony in each case is closed, they, or a majority of them, all having an opportunity to be Determin present, shall, without any unnecessary delay, and before proceeding ation. to the examination of any other claim, ascertain and determine the compensation which ought justly to be made by the said mayor, aldermen and commonalty of the city of New York, to the owners or the persons interested in the rights, titles and privileges to be acquired or affected by the said proceeding. They, or a majority of them, shall also determine what sum ought to be paid to the general or special guardian or committee of an infant, idiot, or person of unsound mind, or to an attorney appointed by the court to attend to the interests of any unknown owner or party in interest, not personally served with notice of the proceedings, and who has not appeared, for costs, expenses and council fees. They, or a majority of them, shall also (but not in excess of any request therefor made in behalf of the city) determine the height to which the waters of any lake or natural stream, concerning which such proceedings are instituted, may be raised, and the point to which such waters may be drawn down by the said the mayor, aldermen and commonalty of the city of New York, such determination to be made before any award of damage shall be made on account of such proposed raising or depressing of such waters. The Report. said commissioners shall make a report of their proceedings to the supreme court, with the minutes of the testimony taken by them, if any; and they shall be entitled to the payments hereinafter provided for their services and expenses, to be paid from the fund hereinafter provided.

tio of

§ 7. On such report being made by said commissioners, the counsel Confirmato the corporation of the city of New York shall give notice to the report. parties, or their attorneys, to be effected by the proceedings, according to the rules and practice of said court at a general or special term thereof for the confirmation of such report, and the court shall thereupon confirm such report, and shall make an order containing a recital of the substance of the proceedings in the matter of the appraisal and a general description of the real estate appraised, for which compensation is to be made; and shall also direct to whom the money is to be paid, or in what bank and in what manner it shall be deposited by the comptroller of the city of New York.

§ 8. A certified copy of the order so to be made as aforesaid shall be recorded, at full length, in the office of the clerk of the county in which the real estate described in it is situated, and thereupon, and on the payment or deposit by the comptroller of the city of New York of the sums to be paid as compensation for the acquisition of such real estate, or for the extinguishment of any right, title or interest therein, and for the costs, expenses and counsel fees as directed by said order, the said com. missioner of public works, for and in behalf of the said the mayor, aldermen and commonalty, shall be entitled to enter upon, take possession and use the said real estate for the purposes indicated in this act and all parties mentioned in this act who shall have been made parties. to the proceedings, together with all parties claiming or to claim,. by, through or under them, shall be forever divested and barred of all right, estate and interest in such real estate, and of all claim for any

So in the original.

when commis public

sioners of

works may take pos

session.

Appeal.

damage on account of the taking, using or affecting of such real estate, How held. Or of any right, title, interest therein. All real estate acquired by the said the mayor, aldermen and commonalty of the city of New York, under and pursuant to the provisions of this act, shall be deemed to be acquired for public use. Within twenty days after the confirmation of the report of the commissioners, as provided for in the seventh section of this act, either party may appeal, by notice, in writing, to the other, to the supreme court from the appraisal and report of the commissioners. Such appeal shall be heard by the supreme court at any general or special term thereof on due notice thereof being given, according to the rules and practice of said court. On the hearing of such appeal, the court may direct a new appraisal and determination of any question passed upon before the same or new commissioners in its discretion, but from any determination of the general term, either party, if aggrieved, may take an appeal, which shall be heard and determined by the court of appeals. In case of a new appraisal, the second report shall be final and conclusive on all the parties interested. If the amount of compensation to be made by the said city is increased by the second report, the difference shall be a lien on the real estate appraised and shall be paid by the comptroller of the city of New York to the parties entitled to the same, or shall be deposited in bank as the court may direct, and if the amount is diminished, the difference shall be refunded to the said the mayor, aldermen and commonalty of the city of New York by the party to whom the same may have been paid, and judgment therefor may be rendered by the court, on the filing of the second report, against the party liable to pay the same. Such appeal shall not affect the possession by the said city of New York of the real estate appraised; and when the same is made by others than the said city it shall not be heard except on the stipulation of the party appealing not to disturb such possession.

Adverse claims as to proceeds.

Unknown parties.

defects.

§ 9. If there are adverse and conflicting claimants to the money, or any part of it, to be paid as compensation for the real estate taken or affected, the court may direct the money to be paid into the said court by the said comptroller, and may determine who is entitled to the same and direct to whom the same shall be paid, and may, in its discretion, order a reference to ascertain the facts on which such determination and order are to be made.

§ 10. The court shall appoint some competent person to appear for and protect the rights of any party in interest who is unknown, or whose residence is unknown, and who has not appeared in the proAmending ceedings by an attorney or agent. The court shall also have power, at any time, to amend any defect or informality in any of the special proceedings authorized by this act as may be necessary, or to cause new parties to be added and to direct such further notices to be given to any party in interest as it deems proper, and also to appoint other commissioners in place of any who shall die or refuse or neglect to serve or be incapable of serving.

In case of

defect city may commence

again.

§ 11. If, at any time, after an attempt to acquire title by appraisal of damages or otherwise, it shall be found that the title thereby attempted to be acquired is defective, the said city may proceed anew to acquire or perfect such title in the same manner as if no appraisal had been made, and at any stage of such new proceedings the court may authorize the said city, if in possession, to continue in possession, and if not in possession, to take possession and use such real estate during the pendency and until the final conclusion of such new proceedings, and may stay all actions or proceedings against the said city on ac.

land.

count thereof on the comptroller of said city paying into court such sum as the court may direct, to pay the compensation therefor when finally ascertained, and in every such case, the party interested in such real estate may conduct the proceedings to a conclusion if the said city delays or omits to prosecute the same. And if, at any time, the said Additional city shall require, for the purposes indicated in this act, to acquire any additional real estate, or to extinguish any other or further rights, titles, interests therein in addition to that which it has already acquired or extinguished, such city may acquire such additional real estate or extinguish such additional rights, titles, interests therein, or any such real estate, or any right, title or interest therein which it now uses or occupies, or which it has heretofore used or occupied, by purchasing the same of the persons or parties owning the same, or interested therein, or affected by such proceedings, and by paying to such parties such damage as they may sustain by reason thereof if the amount of such compensation or damages can be agreed upon between such commissioner of public works and such persons or parties; and if such commissioner of public works shall, for any cause, be unable to agree for the purchase of such real estate, or shall be unable to agree upon the sum which shall be paid to such persons or parties in satisfaction of the damages they may sustain, or if the title to any such real estate or rights already acquired or extinguished, or attempted to be acquired or extinguished, shall, for any cause, prove defective or imperfect, then and in every such case such commissioner of public works may proceed to acquire and perfect title to such real estate or rights, and to ascertain and appraise such damages in the manner and by the proceedings herein before in this act prescribed.

state.

§ 12. The commissioners of the land office shall have power to grant Land beto the said city any real estate belonging to the people of this state longing to which may be required for the purposes indicated in this act, on such terms as may be agreed on between them and the said commissioner of public works, always, however, reserving and maintaining the rights of the people and riparian owners to go to the water at any point to which the same may be drawn; and if any real estate of any Town or county, town or school district is required by such city for the pur- county. poses of this act, the majority of the board of supervisors acting for such county, or the supervisor of any such town, with the commissioners of highways therein acting for such town, or the trustees of any school district acting for such district, may grant or surrender such real estate for such compensation as may be agreed upon between such officers, respectively, and the said commissioner of public works. § 13. In case any real estate required by said city for the purposes Estates of this act shall be vested in any trustee not authorized to sell, release vested in and convey the same, or in any infant, idiot or person of unsound mind, the supreme court shall have power, by a summary proceeding, on petition, to authorize and empower such trustee or general guardian or committee of such infant, idiot, or person of unsound mind, to sell, convey or surrender the same to the said city on such terms as may be just; and in case any such infant, idiot, or person of unsound mind has no general guardian or committee, the court may appoint a special guardian or committee for the purpose of making such sale, surrender or conveyance, and may require such security from such general or special guardian er committee as said court may deem proper. But before any conveyance or release authorized by this section shall be executed, the terms on which the same is to be executed shall be reported to the court on oath, and if the court is satisfied

trustees.

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