#### The Marcellus Electric Railroad Co., Plaintiff, *v.*Noah B. Crisler et al., Defendants.

(Supreme Court, Onondaga Special Term,

November, 1900.)

1. Condemnation Law — Petition — Residence of one, having an inchoate right of dower, must be stated.

Where a petition, made by a railroad corporation under section 3360 of the Code of Civil Procedure to condemn property, states that the wife of the owner of the fee has an inchoate right of dower therein, it must also state her residence as she is an “ owner ” within section 3358 of said Code.

B. Same — Failure to agree with owners as to purchase.

Allegations that the plaintiff has attempted in good faith, but has been unable, to agree with the owners of the property for its purchase, and that the reason is that the owners “demand a sum or price therefor largely in excess of the value thereof ”, are a sufficient compliance with the provisions of the statute in that behalf.

S. Same — Insufficient description of property.

Where a map annexed to the petition served upon the owners does not show their parcel, a description contained in the petition and based upon survey stations on the center line of the proposed railroad — not laid down upon the ground — does not describe with reasonable certainty, the land proposed to be taken.

*2Application for the appointment of commissioners for the appraisal of certain real estate sought to be condemned.

M. F. Dillon, for plaintiff.

Newell, Chapman *&*Newell, for defendants Orisler.

Andrews, W. S., J.

Certain objections are made to the sufficiency of the petition by the attorneys for Noah B. Orisler and Josephine Orisler, who appear specially for that purpose.

The proceeding was begun under the General Condemnation Law and must, in all things, strictly comply with section 3360 of the Code of Civil Procedure.

It is claimed by defendants that the residence of the owners of the property is not given as required by subdivision 4 of that section. The allegation contained in the petition is that *“*Noah B. Orisler is the owner of said premises and resides at Syracuse, N. Y.; that the defendant, Josephine Orisler, has an inchoate right of dower in and to said premises,” and that the “ Onondaga County Savings Bank of Syracuse, N. Y.”, has a mortgage thereon.

As defined by section 3358 of the Code of Civil Procedure, an *“*owner,” as the term is subsequently used in the act, is a person who has an estate, interest or easement in the property to be taken or any lien, charge or incumbrance thereon.

In my opinion, the word “ interest ” as used in this definition is broad enough to cover, and is intended to cover an inchoate right of dower. Consequently, the residence of a wife having such a right must be given. Nor is it sufficient to give the husband’s residence, even where it is alleged in the petition that another defendant is his wife, relying upon the presumption that the wife’s residence is identical with his. Still less is this so, when the fact that the marriage relation exists between the two parties must be deduced from the identity of name, and the fact that such a statement is only made in the title of the proceeding.

It is next said that the petition is not sufficiently explicit as to the failure to agree for the purchase of the property. The statement is *“*That your petitioner has attempted to acquire by purchase from said defendants, the owners thereof,z the property and rights herein described, but has been unable to acquire said property and rights or any part thereof, and has been unable to agree with *3the owners thereof for said purchase for the reason, that in the opinion of your petitioner, said owners demand a sum or price therefor largely in excess of the value thereof. That your petitioner has in good faith endeavored to agree with the owners of said property as to the amount of such compensation hut has been unable to do so for the reason aforesaid.” This allegation would seem to be sufficiently explicit. Matter of Long Island R. R. Co., 50 N. Y. St. Repr. 257; Matter of Suburban Rapid Transit Co., 38 Hun, 553. Both of these cases were decided at a date later than Matter of Suburban Rapid Transit Co., 16 Abb. N. C. 152, and seem to be inconsistent with the latter decision.

It is next said that the lands proposed to be taken are not described with reasonable certainty. The allegation contained in the petition is that “ the portion of said premises necessary for the use of the petitioner herein, as hereinbefore stated, is bounded as follows: Being part of said lot No. 15 in said town, county and state aforesaid and beginning at survey station 122 plus 25 on the center line of the Marcellus Electric Railroad, the same being a point on the East of ¡Nine Mile Creek; thence running along said center line south-easterly on curve to right with radius of 574 feet to survey station 132 plus 83.9 a distance of 405.9 feet; thence southerly along said center line to survey station 136 plus 03, a distance of 319.1 feet, the same being a point on the Horth line of lands of Edward Egan, and being a strip of land 66 feet wide, 33 feet each side of said center line and containing 1.02 acres of land be the same more or less, and for a more complete and definite description of said premises reference is made to the maps and drawings hereto annexed ”. It appears the map annexed to the petition served upon the defendants by some mistake did not cover the land proposed to, be taken, but was of a distinct parcel of property.

It is probable that if it was stated in the petition that this center line was actually laid down upon the ground, the description would be sufficient. Stillwater & M. St. R. Co. v. Slade, 36 App. Div. 587. Or if a correct map had been added there would have been no trouble. But under the circumstances disclosed upon this motion, L must hold with the defendants upon this point.

The objections must, therefore, be sustained, with costs, and an order made dismissing the proceedings, without prejudice to the renewal thereof upon other papers, unless within twenty days, and *4the payment of such costs the plaintiff apply to the Special Term for leave to amend its petition herein; if such leave is granted the present proceedings may stand and be continued; if not, they may be finally dismissed.

Ordered accordingly.