In re Board of Transportation — 243 A.D. 529

Majority

p. 529

In the Matter of the Application of the Board of Transportation of the City of New York, Respondent, Relative to Acquiring Certain Real Property at Queens Boulevard, Eighty-fourth Road, Maple Grove Cemetery, etc., in the Borough of Queens, City of New York. Maple Grove Cemetery Association, Appellant.

Order denying petitioner’s motion to set aside the service of notice in this condemnation proceeding and to determine that the court has acquired no jurisdiction over the petitioner affirmed, with ten dollars costs and disbursements. The court is of the opinion that the word “ thoroughfare,” as used in the statute, does not apply to a subway. Young, Carswell, Scudder and Tompkins, JJ., concur; Lazansky, P. J., concurs in the result, with the following memorandum: It was conceded on the argument that title was acquired by the city on April 15, 1931. The motion resulting in the order from which the appeal has been taken was returnable on July 26, 1933. In the interim the subway was completed. Of all of these facts the appellant had knowledge, or they were conceded on the argument. The appellant was guilty of laches.