N.Y. Railroad Law § 174: Proceedings if property owners do not consent

§ 174. Proceedings if property owners do not consent. If the consent

of property owners required by any provision of this article can not be

obtained, the corporation failing to obtain such consents may apply to

the appellate division of the supreme court held in the department in

which it is proposed to construct its road for the appointment of three

commissioners to determine whether such railroad ought to be constructed

and operated. Notice of such application must, at least ten days prior

thereto, be served, personally, upon each nonconsenting property owner

by delivering the same to the person to whom such property is assessed

upon such assessment-roll or by duly mailing the same, properly folded

and directed, to such property owner at his post-office address with the

postage prepaid thereon. If the person upon whom service is to be made

is unknown, or his residence and post-office address are unknown and can

not by reasonable diligence be ascertained, service of such notice may

be made by publishing the same in such newspaper of the county as the

court may direct, at least once a week for two successive weeks. Upon

due proof of service of such notice the court to which the application

is made shall appoint three disinterested persons, who shall act as

commissioners, and who shall, within ten days after their appointment,

cause public notice to be given of their first meeting in the manner

directed by the court, and may adjourn from time to time, until all

their business is completed. Vacancies may be filled by the court after

such notice to parties interested as it may deem proper to be given; and

the evidence taken before as well as after the happening of the vacancy

shall be deemed to be properly before such commissioners. After a public

hearing of all parties interested, the commissioners shall determine

whether such railroad ought to be constructed and operated, and shall

make a report thereon, together with the evidence taken, to the

appellate division, within sixty days after appointment, unless the

court, or a judge thereof, for good cause shown, shall extend such time;

and their determination that such road ought to be constructed and

operated, confirmed by such court, shall be taken in lieu of the consent

of the property owners hereinbefore required. The commissioners shall

each receive ten dollars for each day spent in the performance of their

duties and their necessary expenses and disbursements, which shall be

paid by the corporation applying for their appointment.