Majority
p. 390VILLAGE OF HERKIMER v. NEW YORK CENT. & H. R. R. CO. et al. (Supreme Court, Appellate Division, Fourth Department. May 7, 1898.) Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.
Headnote
1. Municipal Corporations—Streets—Establishment—Proceedings. ■Where the trustees of a village have discontinued proceedings for the extension of a street, they have no right to restore them, as against persons who in the meantime have acquired rights.
% Appeal—Right to Discontinue.
The trustees of a village have no power to discontinue a special proceeding pending in the appellate division of the supreme court, without the consent of the adverse party or leave of court; and a resolution, passed by them, dismissing such appeal, has no effect thereon.
S. Same—Vacation of Judgment after Affirmance.
A county court has no power to set aside a former order made by it, after such order has been affirmed on appeal by the supreme court.
Appeal from Herkimer county court.
Proceedings to extend Folts street, in the village of Herkimer. From an order of the county court denying a motion to set aside a former order of that court, the New York Central & Hudson River Railroad Company and another appeal.
Dismissed.
Charles E. Snyder, for appellants.
Adam J. Smith, for respondent.
The trustees had power to discontinue their proceedings for the extension of Folts street, which power they effectually exercised by their resolution of May 17, 1897; and they could not, by •their resolution of December 3, 1897, rescinding the resolution of May 17, 1897, restore those proceedings, as against the railroad corporations, which in the meantime had acquired new rights by chapter 754
p. 391
of the Laws of 1897, which took effect July 1, 1897. But the trustees had no power, by the resolution of May 17, 1897, to discontinue the special proceeding against the railroad corporations then pending in ■the appellate division, without the consent of the corporations, or without leave granted by the court upon such terms as should be imposed. The resolution of May 17, 1897, had no effect on that appeal, which either party had the right to prosecute to a decision; and the successful party had the right to enter the order of the appellate division, and collect the costs awarded. The railroad corporations not .having appealed from the order of the appellate division, if it is appealable, the proceeding as to the corporations is dead, except for the purpose of enforcing the payment of costs; and there is no occasion for setting aside the order of the county court entered March 1, 1897, -and affirmed by the appellate division by the order entered October 2, 1897, in the office of the clerk of the county of Herkimer; and we find no authority vesting the county court with power to entertain a motion to set aside its original order affirmed by this court.
The appeal should be dismissed, with $10 costs and disbursements.