Majority
p. 715In the Matter of the Application of the Liberty Heights Liquidating Co., Inc., Appellant, for Leave to Reopen the Proceeding for Acquiring Title Wherever the Same Has Not Been Heretofore Acquired, for the Same Purpose in Fee, to the Lands, Tenements and Hereditaments Required for the Opening and Extending of Kimball Avenue, from Liberty Avenue, near Digby Street, to Liberty Avenue, near Baker Avenue, as Said Kimball Avenue Is Now Laid Out, in the Fourth Ward, Borough of Queens, City of New York. The City of New York, Respondent.
Order denying motion to reopen proceeding reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to the extent of sending the matter to the Special Term for the taking of testimony and a determination of the compensation to be made to the appellant for damage parcel No. 18, and, upon such determination, for the amendment of the final order in this proceeding accordingly. In our opinion, on the admitted facts, the appellant is entitled to an award for the reasonable value of damage parcel No. 18. It has not lost its right to such an award by reason of the
p. 716
provisions of the Civil Practice Act or by laches, and the other parties to this proceeding are not necessary parties to this motion. Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ., concur.