In re the Broadway Underground Railway Co. , 30 N.Y. Sup. Ct. 693 ( 1881 )

Per Curiam :

The petition states that an application has been made for the consent of the owners of one-half in value of the property bounded on Broadway along the line of the proposed tunnel and railroad, and that for the reason set forth in the affidavit of Walter J. Morris, thereto annexed, such consent has not been given.

The affidavit of Mr. Morris fails to show that any personal application has been made to such owners, and that any actual refusal has been given. The affiant simply states that he has endeavored to obtain the consent of one-half in value of the property owners, and has not obtained such consent, and that he believes such consent cannot be obtained because the property owners prefer that the railroad should be built under the guarantees that would be afforded by a proceeding under the statute for the appointment of commissioners, etc. This we cannot accept as a compliance with the requirements of the statute It must be shown affirmatively by a statement of the facts what application, to which consent has been refused, has been made, and to whom, and that the persons to whom the application was made are in fact owners of at least one-half of the property bounded on the proposed railroad, so that the court can judge, and not the affiant, whether there has been such an application and such a refusal as the statute requires.

The very general statements of the petition and affidavit does not confer jurisdiction upon the court to appoint the commissioners.

The motion must therefore be denied, but without prejudice to further proceedings after the requirements of the statute shall have been complied with.

Present — Davis, P. J., Brady and Barrett, JJ.

Motion denied, without prejudice to any further application on sufficient facts.