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In re the Opening of One Hundred & Sixty-Third Street

40 N.Y. St. Rep. 684 Court N.Y. Gen. Term Decision date 1891-10-16 English

Delivered by Ingraham, J.

Contents

Majority

p. 684
In the Matter of the Opening of One Hundred and Sixty-Third Street.
(Supreme Court, General Term, First Department,
Filed October 16, 1891.)

Headnote

Eminent domain—Leave to eíle objections.
The court has power, in a proper case, to grant leave to a party interested to file objections to the report of the commissioners of estimate and assessment after the time fixed by them in their notice has expired.
Appeal by the mayor, etc., of New York from an order of special term granting a motion made by Martin B. Brown for leave to file objections to the report of the commissioners of estimate and assessment herein.
Carroll Berry, for app’lt; James A. Deering, for resp’t.

The respondent omitted to file his objections with the commissioners until the day after the time required by the notice published by them, and this is an appeal from an order made at special term granting leave to file such objections.

The first question presented is whether or not the court had power to allow the respondent to file the objections after the time had expired.

It seems to me clear that this is a special provision within the provisions of § 3334 of the Code.

By § 3333, it is provided that an action is, an ordinary prosecution in a court of justice by a party against another party for the enforcement or protection of a right, or the redress or prevention of a wrong, or the punishment of a public offense. And by §- 3334, every other prosecution by a party for either of the purposes specified in the last section is a special proceeding.

This proceeding was instituted by the mayor, aldermen and commonalty of the city of Hew York, for the purpose of acquiring the title to certain real estate for use as a public street. Such a proceeding is instituted by the municipal corporation applying to the court on notice to those interested for the appointment of commissioners of estimate and assessment who report to the court, but whose report possesses no validity until confirmed by the court, and that by the confirmation of such report it becomes the judgment of the court, conclusive in its character. In the Matter of Arnold, 60 N. Y., 27 ; Dolan v. The Mayor, etc., 62 id., 474, where Rapallo, J., says: “The supreme court acquired jurisdiction of the matter by the application of the city for

p. 685
the appointment of commissioners, and all the parties interested had an' opportunity then to litigate the validity of the resolution ordering the improvement. That the proceedings for such assessments are taken before the court, and the confirmation of the report of the commissioners is a judgment pronounced on a full hearing of the parties and conclusive in its character as to all questions litigated or which might have been litigated in the proceeding,” and it was held that this principle precludes a review of the regularity of such a proceeding in an action by the party assessed unless, perhaps, in case of such a fraud or other circumstance as would authorize an action to set aside an ordinary judgment.

This proceeding, therefore, being a proceeding before the court in which its final judgment is a conclusive adjudication upon all persons interested, it clearly falls within the definition of a special proceeding as defined by § 3334 of the Code, before cited, and all the proceedings either before the court or before the commissioners appointed by the court are in court and subject to its control.

That the court has inherent power over its own judgments and proceedings to make such order as j ustice requires to relieve a party from a default or a mistake, and that such power is not limited by the Code, is well settled.

See Hatch v. Central National Bank, 78 N. Y., 489 , and cases there cited. But if express anthoritv for such an order was-necessary, it is found in § 724 of the Code, where the court has power to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding.

In the Matter of One Hundred and Eighty-first street this court, at special term, set aside the order confirming the report of the commissioners and allowed a property owner to come in and file objections to the award.

There the court not only allowed the petitioner to file his objections but set aside the report and order confirming the report sons to allow him an opportunity to be heard.

This order was affirmed by the general term. See 35 N. Y. State Rep., 548.

And by the court of appeals, 126 N. Y., 641 ; 37 N. Y. State Rep., 961, and is ample authority for the order of the court below.

In this case the objections of the respondent were tendered to the commissioners one day too late, and the affidavits upon which the motion was granted excuses the omission so as to justify the court in relieving him from the default

We think, therefore, the court below had power to grant the order appealed from, and that under the circumstances such power was properly exercised. Order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs; Van Brunt, P. J., concurs in result.