Majority
p. 493In the Matter of the Application of the Board of Education of the City of Brooklyn to acquire title to real property. (City Court of Brooklyn, General Term, Filed November 24, 1890.)
Headnote
.Eminent domain—Judgment should not be entered.A proceeding to acquire property by the right of eminent domain is a special proceeding and it is improper to enter judgment on an order of general term affirming a special term order in such proceedings. The costs should be taxed and inserted in the general term order.
Appeal from order denying motion to vacate judgment. Proceeding to acquire title to lands for school purposes. The petitioner afterwards consented to discontinue but dispute arose as to costs. An order was made discontinuing the proceedings and dismissing the petition with fifty-five dollars costs, which order was affirmed by the general term and judgment entered upon ■such affirmance.
A. F. JenJcs, for app’lt; George 0. Blanke, for resp’t.
This is doubtless a special proceeding and should terminate in a final order and not in a judgment. Code •Civ. Pro., §§ 3343, subd. 20, 3333, 3334; Libbey v. Mason, 112 N. Y., 525 ; 21 N. Y. State Rep., 914.
Therefore we think the order of general term affirming the special term order in this proceeding was final, and that it was irregular to enter judgment upon such order. The costs should have been taxed by the clerk, and then inserted in the general term order. Code, §§ 3262, 3266. We think the motion to vacate such judgment should have been granted; therefore the order denying the motion should be reversed, with ten dollars costs of appeal and disbursements.
Clement, Ch. X, concurs.