In re the Laying Out & Opening of Morris Street

Majority

p. 613

In the Matter of the Laying Out and Opening of Morris Street, between Riverdale Avenue and Hawthorne Avenue, in the City of Yonkers. Annie L. Winters and James B. Ludlow, Appellants; George H. Purser and Others, Respondents.

Headnote

Street opening procedure—stay of an appeal and procedure with a reference directed hy the order appealed from, ordered,

"Where the court, upon the confirmation of the report of commissioners in a proceeding to take lands for a street, strikes out, at the instance of rival claimants, an award made to one set of heirs; directs that the award be made as to “unknown heirs;” that it be held subject to the further order of the court, • and that a referee be appointed to determine which set of claimants is entitled • to it, the court may subsequently, at the instance of the defeated heirs', who •' are assessed for the benefits of the work almost to the extent of their award, , direct an appeal, which they have taken from the order directing the award to be made aS to “ unknown heirs,” to be suspended, and that the referee proceed ; with the reference.

Appeal by Annie L. Winters and another from an order of the Supreme Gour-t, made at the Dutchess Special Term and entered in the. office of the .clerk of the county of Westchester on the 29th day of April, 189Y, directing that the reference in the matter pro'ceed and staying the proceedings upon the appeal from a prior order made in the action. •

James B. Ludlow, for the appellants.

William Romer, for the respondents.

There seems to be but little occasion for controversy on the subject of the order from which this appeal was taken: The ordér was made on the application in behalf of the Purser heirs, who are the respondents on this review, upon a hearing opposed by the appellants, who are some of the Ludlow heirs. The-dispute between the two sets of heirs has relation to the sum of $3,240 awarded in this matter by the commissioners for land taken for the south half of the proposed Morris street. This award was made to the Purser estate, and when their report canie before the court, upon motion made in

p. 614

behalf of the city of Yonkers for confirmation, the contest between the Purser and Ludlow heirs was brought to the attention, of the 'court,- and the order was- modified by striking out the “Purser estate,” as the beneficiary; of- the . award,, and inserting “ unknown •ownérs,” and as so. (in another respect, hereinafter mentioned) modified was confirmed. And it was referred to'a referee, named, to-determine who were the persons-legally entitled to the strip of land taken for such south half of the proposed street. ■ It was further-ordered-that in the meantime'the amount of the award remain with the city treasurer to the credit of this proceeding,'subject to the further order of the court. -From that-order the Purser heirs appealed. They, nevertheless,- desired to proceed with the reference. But the appellants resisted the proceeding with it until the appeal so taken should be disposed of. Thereupon the motion was made by the Purser heirs for. direction that the reference proceed to determination, and that the appeal so taken by them be suspended in the meantime,, and from the order made to .that effé.ct this appeal is taken... - -

It' quite. evidently appears that the r.eal and substantial controversy of the parties -to this appeal is in their conflicting -claims to the sum of the award before mentioned, and that if the. result of the reference in that respect gives it to the Purser'heirs they will hot -care to proceed with their appeal, and the controversy will he ended. That and the further ■ fact relating to the expense of printing the papers for the hearing of the appeal-are reasons' asserted in support of the order .now. under consideration. On the other hand,.it is urged that the expense of the reference will be-wasted if the Purser, heirs are not satisfied with the result and proceed with their appeal to reversal of the order upon which the reference is founded; and it is -further urged that they are chargeable with laohes for failure, to .bring their appeal on- to hearing.- There is some force in- those suggestions, although the expense of the referee; and,stenographer will, by virtue of the stipulation to that effect, fall upon the unsuccessful' party in the reference.. There is, however, the further fact that-the sum of - $2,950 was assessed against the Purser heirs for benefits resulting .to their premises by the street. In the report, as made by •the commissioners, this sum was deducted from such award, increased by the nominal sum of ten. dollars for land' taken for the north -half

p. 615

of the proposed street, thus leaving the balance of $300, which in their report was mentioned as such to be paid to the Purser heirs.

By the further modification of the report made by the order confirming it, such balance was stricken out, thus leaving the entire sum assessed for benefits to stand. This furnishes a substantial reason for a desire on their part to have the reference proceed to conclusion without- unnecessary delay.

It is now evident that the appeal from that order cannot be heard in considerable time. And as it .is not seen that any prejudice will necessarily result to the legal rights of the appellants by having the hearing before the referee go forward, to an early determination by him of the disputed claims to the amount of the award in question, the order should be affirmed.

All concurred.

Order affirmed, without costs.