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Diack v. City of New York

187 A.D. 312 Court Second. Department, Decision date 1919-04-11 English

Delivered by Jenks, P. J.:

Contents

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p. 312
George A. Diack and Others, Appellants, v. The City of New York, Respondent.
Second. Department,
April 11, 1919.

Headnote

Ejectment—action does not lie where realty affected by prior proceedings in eminent domain — collateral attack upon judgment.
An action of ejectment does not lie where the realty of the plaintiffs is directly affected by two proceedings in eminent domain under which a municipality has condemned the perpetual underground easement and the fee simple absolute free from all liens and incumbrances, as said action would constitute a collateral attack upon a judgment.
p. 313
Appeal by the plaintiffs, George A. Diack and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of May, 1916, upon a dismissal of the complaint on the merits by direction of the court at the close of the case.
William H. Good, for the appellant.
Charles J. Nehrbas William P. Burr, Corporation Counsel, with him on the br ef], for the respondent.

The action is ejectment. The realty of the plaintiffs was directly affected by two proceedings in eminent domain. First, the city condemned the perpetual underground easement, and second, the fee simple absolute, free from all liens and incumbrances. The second proceeding was affirmed by us in Matter of Public Service Commission ( 167 App. Div. 908 ), and by the Court of Appeals in 217 New York, 61.

I am of opinion that the action of ejectment does not lie, in that it is a collateral attack upon a judgment. (Chesapeake & Western R. Co. v. Washington, Cincinnati & St. Louis Ry. Co., 99 Va. 715 ; Dolan v. Mayor, etc., 62 N. Y. 472 ; Secombe v. Railroad Co., 90 TJ. S. [23 Wall.] 108; Robert v. Supervisors of Kings, 3 App. Div. 366 ; affd., 158 N. Y. 673 ; Mayer v. Mayor, etc., 101 id. 284; Donnelly v. City of Brooklyn, 121 id. 9, 18; Burke v. City of Kansas, 118 Mo. 309 ; Atchison & Nebraska R. Co. v. Forney, 35 Neb. 607 ; Van Schoick v. Delaware & Raritan Canal Co., 20 N. J. L. 249 ; Matter of Public Service Commission, 167 App. Div. 908 ; Black Judg. [2d ed.] § 246 [citing, inter alia, Farrington v. Mayor, etc., 83 Hun, 124 ]; Lewis Em. Dom. [3d ed.]' § 870.)

I advise affirmance, with costs.

Present — Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ.

Judgment unanimously affirmed, with costs.

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