Majority
p. 491In the Matter of the Application of The City of New York, Relative to Acquiring Title to Lands, etc., for the Purpose of Opening Foster Avenue from the Westerly Line of Flatbush Avenue to the Easterly Line of Coney Island Avenue, in the Twenty-ninth, Thirtieth, Thirty-first and Thirty-second Wards of the Borough of Brooklyn, City of New York. Germania Real Estate and Improvement Company, Appellant; Annie W. Stephens, Individually and as Executrix, etc., of Benjamin F. Stephens, Deceased, Respondent. Second Department, May 3, 1907.
Headnote
Eminent domain — acquisition of lands for street purposes in city of New York— party not appealing from award cannot vacate extension of time given to appellant.Under section 988 of the charter of the city of New York, parties to a'proceeding for the acquisition of lands for street purposes who do not appeal from the confirmation of the award made to them are bound thereby.
Hence, a party who has-not appealed has. no standing to move to vacate an order . extending the time in which an appellant may print and file papers.
• Appeal by the Germania Beal Estate and Improvement Company from an .order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of
p. 492
Kings on the 14th day of February, 1907, denying the appellant’s motion to vacate an order made at the Kings County Special Term and entered in said clerk’s office on the 2d day of February, 1907, extending until March 1, 1907, the time' to serve and file printed papers on the appeal herein to this court from an order made at the Kings County Special Term and entered in said clerk’s. office .on the 27tli day of June, 1906, confirming the report of the commissioners of estimate and assessment herein; . and also from an order made at the Kings. County Special Term and entered in said . clerk’s office on the 1st day of February, 1907, denying the appel- • lant’s motion to vacate an order made by a justice of the Supreme Court on the 10th day of January, 1907, extending until. February 1, 1907, the appellant’s time to serve and file said appeal papers.
This was .a proceeding by the city of Mew York to acquire the ' land in Foster avenue for a street.
The report of awards and assessments by the commissioners of _ estimate and assessment was confirmed by the court on June 26t'h, 1906.- Annie W. Stephens, respondent, one of- the landowners to whom an award was made, filed her notice of appeal therefrom to this court on July 16tli, 1906. On January 10th, 1907, the respondent ” got an order exponte from a Judge of the Supreme Court extending to February 1st her time to print and file her papers on such appeal. Tliis appellant made a motion on notice before the court at Special Term to vacate the said order as irregular and void, for not being a court order, which was denied on February 1st, and thereupon, on the same day, the court granted an order ex parte extending such time to March 1st. The appellant moved before the court on notice to vacate this last order, and one appeal here is by it from the order denying that motion. . There is also an appeal here by it from the said order denying the motion to vacate the said Judge’s order.
■ Barclay F. Y. McCarty [Jared G. Baldwin, Jr., with him on ' the brief], for the appellant.
Albert Bach [Joseph A. Flannery with him on the brief], for . the respondent. ' . ' •
Section 988 of the city charter allows an appeal to this court within á time limited from an order confirming the report of commis^
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sioners of estimate and assessment, but provides that “the taking of an appeal by any person or persons shall not operate to stay the proceedings under this act, except as to the particular parcel of real estate with which the appeal is concerned; and the qrder confirming the said report or reports shall be deemed to be final and conclusive upon all parties and persons affected thereby who have not appealed.” This appellant did not appeal from the order of confirmation within the time limited, nor did the city. The award to it is therefore final and conclusive and has to be paid by the city. It therefore played the part of an intermeddler in moving to vacate the orders extending the time of the respondent to print and file the papers on her appeal from the said order of confirmation, in respect of the award to her, and in appealing from the orders denying its said motions. In any case the brief of its counsel might well have refrained from using such-epithets and accusations as “insincere”, “positive impertinence”, “insincere subterfuge”, “snap proceeding” and “incompetence” toward his learned opponent, but all the more so when he is" thrusting his client into matters that do not concern it. • '
The orders should be affirmed.
Jenks, Hooker, Rich "and Miller, JJ., concurred.
Orders affirmed, with ten dollars costs and disbursements.