In re Lexington Avenue — 40 N.Y. St. Rep. 723

Majority

p. 723

In the Matter of Lexington Avenue. In re John Schreyer, App’lt.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Eminent domain—Leave to file objections—Loches.

The time to file objections was limited by the commissioners to March 29, 1888. The appellant employed counsel to represent him, who advised him to do nothing. In November following he obtained an order to show cause why he should not have leave to file objections. Held, that the court was justified in denying such leave on the ground of loches.

Appeal from, order denying motion for leave to file objections to preliminary report of commissioners.

James A. Deering, for app’lt; Carroll Berry, for resp’t.

On February 14, 1888, the commissioners of estimate and assessment gave the notice required by the statute regulating these proceedings, requiring all persons interested in the proceedings or any of the lands affected thereby, or who may be opposed to the same, to present their objections in writing on or before the 29th. day of March, 1888.

p. 724

Mo objections were filed by the appellant, John Schreyerwithin the time allowed by law and the notice. Subsequently, on the 15th • of Movember, 1888, the appellant obtained an order-requiring the petitioners to show cause on the 20th of Movember,. 1888, why he should not have leave to submit to the- commissioners any affidavits and objections. That motion was denied.

In the order entered it is not stated that the motion was -denied on the ground that the court had no power to grant it; the -order is general, simply denying the .motion.

An examination of the record will show that the court might well have denied the motion on the ground of loches and that the motion was not made in good faith or for the protection of the .appellant. The appellant does not state when he first knew of the proceedings, but it is evident that he did know of them in ample time to have appeared before the commissioners and to have filed any objections to their report. He did .employ counsel to represent him and did nothing else, and when he consulted with his counsel his counsel advised him not to do anything and he followed that advice.

It is evident, therefore, that not only did the appellant have full knowledge of the proceedings but he also had knowledge - of the fact that he had been awarded but one dollar for his property in ample time to have protected himself, and that he adopted the course that he did under the advice of his counsel. .

Assuming, therefore, that the court had power, to grant the application, we think it was justified in denying- it on the ground before stated. ...

Order appealed.from affirmed, with ten dollars costs and .disbursements. As the order is affirmed on the merits it is not necessary to consider the motion to dismiss the appeal.

That motion will therefore be denied, without costs.

Van Brunt, P. J., and Daniels, J., concur.