In re Seventy-Sixth-Street — 12 Abb. Pr. 317

Majority

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MATTER OF SEVENTY-SIXTH-STREET.

Supreme Court, First District;

Special Term August, 1861.

Headnote

Appeal in Street Cases.—Taxation of Costs.

After confirmation of the report of commissioners in street cases, there can he no retaxation of the costs. If there is a necessity for retaxation, it must be had before the confirmation.

An appeal does not lie to the general term from an order made at special term, confirming the report of the commissioners.

Application to dissolve stay of proceedings.

This was an appeal to the general term, from an order made at special term confirming the report of the commissioners in the matter of opening Seventy-sixth-street from Eighth Avenue to the Hudson river. The parties appellant were property holders and owners adjacent to the proposed opening, and who were liable to assessment therefor. A motion for a

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relaxation of the costs in this case was made in their behalf at the special term, simultaneously with the motion for confirmance of the commissioners’ report. The judge at special term made an order confirming the report, but the motion for a retaxation was left undecided. The parties objecting appealed from this order, and on their appealing, obtained an order staying all further proceedings in the matter pending the appeal.

H. H. Anderson,

for the Corporation, now moved to vacate the order staying proceedings, on the ground that—I. The order was improperly granted, as the order from which the appeal was taken is not appealable, and therefore no stay could be properly imposed. (Matter of the Bowery, 2 Abbotts' Pr., 368.)

II. The objectors have no legal status in court, as they cannot be affected individually by the payment of the costs in this case.

Elbridge T. Gerry,

in opposition to the motion. I. The stay was properly granted as incidental to a right of appeal conferred by express statute. (Laws of 1854, ch. 270.) The application of this statute to cases like the present, thus authorizing an appeal from the special to the general term, has been unanimously recognized by the Court of Appeals. (Matter of Canal and Walker streets, 12 N. Y. (2 Kern.), 406, 411.) And this ruling was followed by the general term of this district in a recent case, where a motion to dismiss the appeal was denied, and the case heard on the merits. (Pryor’s Appeal, 5 Abbotts’ Pr., 272.)

II. The objectors are entitled to a stay at all events until the motion for a retaxation of the costs is determined (which will probably be in their favor, from the reasons stated in the Central Park Case, 12 Abbotts' Pr., 107); as, if the amount of the same be reduced before the assessment therefor be actually levied, it will reduce the amount of the latter at least one half.

III. If the court shall hold that the deciding of the motion to confirm the report disposed also of the motion for retaxation, still the stay should be continued until the determination of the general term upon the appeal, for the protection of the objectors appellant.

—In this case the report was confirmed, and the taxation of costs disallowed. A motion was made for a retaxation of costs, which is still undecided. Subsequently a stay of proceedings was granted, to allow an appeal to the general term.

Either the proceeding is completed before the judge at special term by a final decision, or there can be' no appeal. I am at a loss to see how the taxation can be reviewed after confirmation of the report. The costs and expenses are to be included with the damages, and assessed upon the owners of the property. Such assessment has been confirmed, and if the amount of costs is reduced, the assessment should also be reduced; otherwise the parties assessed might be compelled to pay a larger sum for damages than the law allows.

The right to appeal in these cases from special term has always been doubted; and the decision of the general term of this district, in the Bowery Extension Case, appears to be conclusive upon this question, until the same is reviewed by the general term.

If there is a necessity for reviewing the taxation of costs in these cases, it seems to me necessary to do the same before the report is confirmed. If the costs are materially reduced, the report should be sent back to the commissioners for a like reduction—so that no greater sum shall be. assessed than is to be expended.

■ The motion to vacate the stay of proceedings must be granted.