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Opinion of the Court, per RAPALLO, J.

Any person feeling aggrieved by the proposed location may, within fifteen days after receiving such notice, apply for the appointment of commissioners. If appointed it becomes their duty to examine the proposed route, and to affirm or alter it, as may be consistent with the just rights of all parties and the public. There is nothing in the statute which restricts the power of the commissioners over the proposed route to that part of it which lies within the bounds of the land of the party procuring their appointment. The effect of such a restriction would, except in very rare cases, be either to deprive the commissioners of the power to change a location unnecessarily prejudicial to the objecting party, or to compel them, for the purpose of affording such remedy, to make curves which would be a serious injury to the line, and might render it dangerous or impracticable. No change, of any considerable extent, can be made in the line of a railroad at a particular point without involving an alteration of the course to a greater or less distance in each direction; and the legislature has not been guilty of the absurdity of limiting the distance to which such necessary alterations may extend, by the boundaries of the land of the objecting party, or of making his right to relief depend upon the extent of the area of his land. When, upon the application of a person aggrieved by the proposed location, commissioners are appointed, they are required by the statute to examine and affirm or alter, not that part of the line which runs through the premises of the objector, which may be very limited in extent, but the proposed route. That clearly refers to the route referred to in the preceding part of the section, and of which a map is required to be filed, viz., “the route intended to be adopted by such company in said county;" and empowers them to make any alteration of such route which may be necessary to obviate such objections of the party aggrieved as they may decide to be well founded. This point was determined in the Matter of the Long Island Railroad Company (45 N. Y., 36+).

It cannot therefore be objected that, in the present case,

Opinion of the Court, per RAPALLO, J.

the commissioners have exceeded their jurisdiction by making alterations extending beyond the boundaries of the lands of the petitioners. If duly appointed, they had jurisdiction to affirm or alter the proposed route as might be consistent with the just rights of all parties and the public. Their determination might be, and was, founded upon a personal examination of the route, and of the adjacent property, as well as upon testimony; and if upon knowledge thus acquired they had made an alteration of the proposed route, there would be no means of reviewing their decision upon the merits.

The real question presented on this appeal is whether the adjudication of the commissioners is in fact an alteration of the route. Cutting out and transplanting a portion of the line of the road, and leaving it disconnected at each end from any other portion of the road, would not be such an alteration of the route as is contemplated by the statute. Taken literally, this is what the decision of the commissioners purports to do. It changes the location of the road through the premises of William and George Hartman, from the route laid down on the map, so as to be “laid in and correspond with " a straight line running from the railroad at Zerfass street to the intersection of Jefferson and Ossian streets. It does not, in terms, connect either end of the piece of road so to be laid in and correspond with the straight line described, with the residue of the railroad; nor does it appear whether or not this straight lire could be adopted as part of the line of the road. But assuming that the decision can be so interpreted as to embrace in the route of the road, as changed, the whole of this straight line from Zerfass to the intersection of Ossian and Jefferson streets, there the connection ends. The decision does not direct in what manner the road is to be continued beyond Ossian street. It makes the road terminate there. To thus abridge or interrupt the road was clearly beyond the power of the commissioners.

It is argued that the railroad company may themselves lay out and complete the line from the intersection of Jefferson and Ossian streets, so as to connect at some more southerly

Opinion of the Court, per RAPALLO, J.

point with the residue of the road. But we do not think this an answer to the objection. In exercising the power to alter the proposed route through the county, it was the duty of the commissioners to complete the alteration so as to preserve the continuity of the line, and not merely to point a portion of the road in a particular direction, leaving the company to find their way back to the main line. The commissioners were so to alter the route “as might be consistent with the just rights of all parties and the public;" and for this purpose to examine the route and hear the parties. The whole alteration should be made by the commissioners, and their judgment should be exercised in respect to every part of it. We think that the statute contemplates but one board of commissioners in each county; and that all alterations to be made in the proposed route in such county should be made by that board. There is no provision in the statute looking to the existence of more than one board, or providing for the determination of differences which might arise between several boards. When it should become necessary to alter a line it could hardly be expected that several independent boards would exactıy coincide, or harmonize in their action; and it the statute contemplated that several bodies of this description should operate upon the line in the same county, it is rea sonable to suppose that provision would have been made for reconciling differences between them. The absence of any such provisions tends strongly to show that the appointment of but one board of commissioners was intended to be authorized. The board so appointed should therefore complete its work, either by affirming the route proposed by the company or making all the necessary alterations; and when this is done, the route through the county is established. Any other construction would lead to endless confusion. In the present case, if the location by the commissioners of the portion of the line described in their decision were held sufficient, and the company should proceed to lay out a new line to connect the piece laid out by the commissioners with the residue of the road, any party deeming himself aggrieved by such new

SICKELS–VOL. IV. 40

Statement of case.

line might procure the appointment of another board of commissioners, and they might make such alterations as would necessitate a change in the line designated by the first commissioners; and this might happen as often as any board of commissioners should attempt an alteration incomplete in itself, and which the company should be obliged to complete on its own responsibility.

We think, therefore, that the commissioners, if they undertook to make any alteration of the proposed route, should, after having afforded to all occupants of the land to be affected by the alteration an opportunity to be heard, have completed the alteration so as not to break the continuity of the line, or to throw upon the company the responsibility of finishing the work which they, the commissioners, had begun. It was their duty, when causing the line of the road to diverge from the route laid out by the company, to provide a substi tuted route, consistent with the just rights of all parties and the public, and by which they would be bound. And for the failure of the commissioners thus to complete the performance of the duty imposed upon them by the statute, the judg. ment of the General Term, reversing their decision, should be affirined.

All concur, Church, Ch. J., not voting.
Judgment affirmed.

49 362 113 309

GEORGE C. PETERS et al., Appellants, v. John F. DELAPLAINE

et al., Respondents.

49 302 114 606

49 302 132 300

49 362 144 111

49 362 153 603

19 362 155 590 49 362 168 1195

A specific performance of a contract for the sale of lands will not be

granted where the vendee has delayed seventeen years after the refusal of the vendor to perform before seeking to enforce it, and where meanwhile the situation of the parties and the condition and value of the

property has greatly changed. The statute of limitations, by which an action for equitable relief is abso

lutely barred by lapse of time, does not affect the general doctrines of equity or the principles upon which relief is granted in particular cases, and although an action for specific performance be brought within the statutory limit as to time, the question still remains, and must be decided

Statement of case.

in each action, whether under the peculiar circumstances equity and good conscience require a specific performance or will leave the party to

his remedy at law. (Learned v. Smith, 44 N. Y., 618, explained.) A right of action for specific performance accrues upon the refusal of the

vendor to perform as required by the terms of the contract, and the fact that the vendor could not then give a perfect title does not affect the cause of action or the extent of the relief, but operates merely to modify the form of the decree substituting compensation or indemnity in part for a full specific performance. It is no answer, therefore, to a claim that the statute of limitations then commenced running, that the form of relief the vendee could then have had was not precisely the same as

that subsequently attainable. While the framers of the Code abolished the distinction in actions and the

forms of actions, they recognized the different classes of rights, and the clear distinction between legal and equitable causes of action and the different remedies. And the legislature, in adopting that portion of the Code limiting the time for the commencement of actions, intended a simple revision, not a change in the prior statutes. Where an action for relief is spoken of in sections 91 and 97, reference is had to actions

which before the Code were only cognizable in courts of equity. An action for the specific performance of a contract under seal is not an

action upon a sealed instrument within the meaning of section 90. The contract gives no absolute right to a specific performance, and the exercise of this branch of equity jurisdiction is not a matter of right but of discretion, and the relief sought is granted or refused according to the circumstances of each case, irrespective of the former character of the contract or the foundation of the liability. But such an action, whether it grows out of a contract under seal, a written instrument not under seal, or a parol contract, is included in section 97, and is barred at the expiration of ten years from the time the cause of action accrued.

(Argued April 3, 1872 ; decided May 21, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of defendants entered upon the decision of the court upon trial without a jury.

The action was to enforce specific performance of a contract for the sale of land in the city of New York. It was brought by the vendee's representatives against the vendor's representatives. The contract was dated March 1, 1852. It provided for complete performance on both sides at the office of John F. Delaplaine, the vendor, on May 1, 1852, between the hours of ten A. M. and three P. M. He was to give “a satis

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