#### The Staten Island Rapid Transit Railway Company, Respondent, *v.*Charles Rosenberg and Others, Defendants, Impleaded with The People of the State of New York and Others, Appellants.

Second Department,

June 20, 1913.

Eminent domain — condemnation proceedings — order appointing referee to hear and determine issues — appeal.

' Where, upon the return day of a motion for the appointment of commissioners in condemnation proceedings the defendants appear, make preliminary objections on the ground that the petition is insufficient, and interpose an answer, an appeal from an order appointing a referee to hear and determine the issues raised by the petition and answer is unauthorized and should be dismissed.

Appeal by the defendants, The People of the State of New York and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 21st day of February, 1913, overruling preliminary objections to the action and appointing a referee to hear and determine the issues raised by the petition and answers.

*Wilber W. Chambers, Deputy Attorney-General [Thomas Carmody, Attorney-General,*with him on the brief], for the appellants.

*Marvin W. Wynne,*for the respondent.

*473Burr, J.:

Upon a duly verified petition plaintiff moved for judgment that the public use requires the condemnation of the real property described therein; that plaintiff is entitled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners be appointed to determine the amount thereof. Upon the return day of the motion defendants the People of the State of New York and the Commissioners of the Land Office of the State of New York appeared and interposed an answer. This answer is not made a part of the record in this case, hut the fact that said defendants did answer is recited in the order appealed from. At the same time said defendants interposed certain so-called preliminary objections to the granting of the motion upon the ground that the petition was insufficient in certain particulars. The learned court at Special Term overruled these objections and made an order appointing a referee to hear and determine the issues raised by said petition and answer, and from that order this appeal comes.

We think that the appeal must be dismissed. The Condemnation Law (Code Civ. Proc. §§ 3357-3384) does not in express terms authorize the service of a demurrer. It does provide that *“*The provisions of law and of the rules and practice of the court, relating to the appearance of parties in person or by attorney in actions in the Supreme Court, shall apply to the proceeding from and after the service of the petition.” (Code Civ. Proc. § 3364.) Under the former Railroad Law (Laws of 1850, chap. 140), whose provisions were less liberal in expression, it was held that such preliminary objections when interposed might be treated as a demurrer. *(Matter of New York, West Shore & Buffalo R. Co.,*64 How. Pr. 216.) If we should, therefore, treat the order appealed from as an order overruling a demurrer, it is sufficient to say, *first,*that having answered, defendants must be deemed to have withdrawn said demurrer; and, *second,*that such an order may not he reviewed by direct appeal therefrom. An appeal may he taken from the final order in condemnation proceedings, entered after the report of the commissioners, which appeal brings up for review all the proceedings subsequent to the *474judgment. (Code Civ. Proc. § 3375.) Upon such appeal all proceedings antecedent to the judgment may also be reviewed “ if the appellant states in his notice that the same will be brought up for review.” (Id.) bio other appeal is authorized unless a trial of the issues has been had, either before the court or a referee appointed to hear and determine the same (Id. § 3367), and judgment has been rendered in favor of the *defendant.*(Id. § 3376.)

It follows that the appeal must be dismissed, with costs and disbursements.

Thomas, Carr, Rich and Stapleton, JJ., concurred.

Appeal dismissed, with costs and disbursements.