Citations
- 52 N.Y. 131
Full opinion text
Allen, J.
It is objected that, in the petition of the park commissioners, the real .estate sought to be taken is not described, and that the petition does not state the names and places of residence of the owners or claimants of such real estate, as required by the act under which the proceedings were taken. (Laws of 1872, chap. 45, § 2.)
The body of the petition does not contain these facts, but it is not claimed that they must be stated within the four corners of the formal petition.
It is conceded that the description of the property and the names- of the owners may be given in any paper accompanying the petition and making a part of it.
While the law requires a strict compliance with every requirement of a statute by which' an individual may be divested of his property against his will, especially every requirement essential to the protection of the rights of the 'property owner, it looks to the substance rather than to the form, and, if there is a substantial compliance with every essential condition and requisite of the statute, it is sufficient, and the power will be duly exercised. A paper so referred to and described, in a written instrument, that it may be identified beyond all reasonable doubt, may be, by such reference, made a part of the instrument, as if incorporated into the body of it. (Tonnele v. Hall, 4 Comst., 140.) - It is not necessary that the paper referred to should be annexed to or deposited in the same place with the instrument of which it is made a part by reference. It is the reference to the paper by proper description and identification, in a manner and by words indicating an intent to make it a part of the instrument, that affects the incorporation of it for all purposes.
Parol evidence may be resorted to to prove the identity of the paper,. (Climar v. Cooke, 1 Sch. & Lef., 22; Riley v. City of Brooklyn, 46 N. Y., 444.) It is most usual to annex papers designed to be incorporated in an instrument by a reference, and a simple reference to a paper thus annexed will suffice without more particular description^ and, if referred to as annexed, and is not annexed, the defect cannot be supplied by parol. (Moir v. Brown, 14 Barb, 39.) Neither is there any particular mode of reference to a paper, whether annexed or not, essential to make it a part of the chief or principal instrument. Any language which clearly indicates the intention of the parties or the maker of the instrument to that effect, will suffice, within the well established rule which calls upon courts to give effect to the intent as indicated by the words employed by parties. It is immaterial whether the connection of the two papers is shown by a reference in the body of the one to the other, or by a physical annexing of one to the other, in a manner or under circumstances showing clearly the intent that the two shall together make one instrument.
Mr. Parsons, in his treatise on Contracts (vol. 3, p. 17), speaking of an agreement, says: “ It may be one or many pieces of paper, provided that the several pieces are so connected by mutual reference or otherwise that there can be no uncertainty as to the meaning and effect of them all when taken together and viewed as a whole.”
The paper served on the owners and claimants of the property and presented to the court was properly indorsed as