Buffalo & New York City Railroad v. Brainard , 1 Seld. Notes 171 ( 1853 )

The defendants appealed from the judgment of the Supreme Court at general term in the eighth district; affirming a judgment of the special term, confirming the report of commissioners, made in May, 1851, fixing the damages to be paid to the defendants on account of the taking of their lands by the plaintiffs for the track of their road.

The objections made to the proceedings were: 1st. That the general railroad act under which the proceedings were had, was unconstitutional. 2d. That it appeared by the report of the commissioners that they proceeded under the act of March 27, 1848, which act was repealed. 3d. That it did not appear by the report that the commissioners proceeded in accordance with the provisions of the act of April 2d, 1850, under which they were appointed.

This court held the general railroad act constitutional. And it appearing by the report of the commissioners, and by the proceedings thereon in the Supreme Court, that the defendants attended before the commissioners, and before the Supreme Court, at all times when any steps were taken in the proceedings; and it not appearing that they made any objections on account of the defects now complained of, all of which were such as might have been obviated if the objections had been made in season, it was held that those objections had been waived, and the judgment of the Supreme Court was affirmed.

(S. C., 9 N. Y. 100.)