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In re Water Supply

103 N.Y.S. 911 Court N.Y. App. Div. Decision date 1907-04-19 English

Delivered by JENKS, J.

Contents

Majority

p. 911
(119 App. Div. 74)
In re WATER SUPPLY IN CITY OF NEW YORK.
(Supreme Court, Appellate Division, Second Department
April 19, 1907.)

Headnote

Appeal—Time oe Taking Proceedings—Nature and Operation of Limitations.
The appellate court has no power to grant an order nunc pro tunc allowing an appeal to the Court of Appeals from an order when its power to allow such appeal has lapsed with the expiration of the preceding term, since the court cannot do indirectly what it is forbidden to do directly.
[Ed. Note.—For cases in point, see Cent Dig. vol. 2, Appeal and Error, $ 1982.]
In the matter of the application of the city of New York to acquire certain real estate at Massapequa in the towns of Hempstead and Ovster Bay, in the county of Nassau, for purposes of water supply. Motion made for order nunc pro tunc. Motion denied.
See 102 N. Y. Supp. 116 , 116 App. Div. 801 .
Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
William B. Ellison, Corp. Counsel, for the motion.
Augustus N. Hand and Joseph A. Flannery, opposed.

This is a motion made at this term of this court for ■an order nunc pro tunc as of the 7th day of March, 1907, the date of filing the notice of appeal to the Court of Appeals, allowing an appeal herein to the Court of Appeals, and certifying that a question has arisen which ought to be reviewed by that court. Our order of which a review is sought was made on the 11th day of January, 1907. The ensuing term of this court began on the fourth Monday of February, 1907, and ended on March 22, 1907. The present term began, on the third Monday of April, 1907. If we could grant this motion, we would do so, but our view is that we lack the power. Our power was spent with the lapse of the January and the March terms (Porter v. International Bridge Co., 163 N. Y. 79 -85, 57 N. E. 174 ), and we cannot now by an order nunc pro tunc “do indirectly” what we are “forbidden to do directly” (Guarantee Trust Co. v. P. R. & N. E. R. R. Co., 160 N. Y. 1 , 54 N. E. 575 ).

For this reason, the motion is denied.

Motion denied, with $10 costs. All concur.

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