In re the Opening & Extension of Brownell Street — 44 N.Y. St. Rep. 485

Majority

p. 485

In the Matter of the Opening and Extension of Brownell Street, in the Village of Edgewater.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

3. Eminent domain—Opening default—Terms.

Where the court, as matter of favor, opens the default of a property

p. 486

owner who failed to appear before the commissioners- and sends back the report for further hearing, it may properly impose as a condition of granting the order that the costs of the former hearing shall ue paid by the-party in default.

2 Same—Commissioners.

Where it is shown that the original commissioners were appointed on the application of the persons liable to assessment, the selection of new commissioners on sending back the report for rehearing is a wise exercise-of discretion.

Appeal by the Marine Society of the city of New York from: so much of an order at special term as provides that said society shall pay the costs and disbursements of the former hearing as a condition of granting its motion to set aside and vacate the report. of the commissioners and open its default, and so much as provides that the report shall be referred back to new commissioners ; also from so much as provides that- if default be made: in the payment of said costs and disbursements, the motion shalli be denied and the report confirmed.

Geo. J. Greenfield, for app’lt; Wm. M. Mullen, for resp’t.

Brownell street extended, as proposed by the-village of Edgewater, goes through the lands of the Marine Society of the city of New York.

The proceedings were entirely regular. The Marine Society did not*appear before the commissioners of estimate and assessment. After the commissioners had reported, the Marine Society applied to the court at special term to open the default of the-Marine Society and to send back the report of the commissioners with directions to review the assessment made against the society for benefits resulting from opening of the street. The court granted the motion to send back the. report upon condition that the Marine Society pay the costs of the former hearing. The default is wholly unexplained. The owner is silent while expensive proceedings are progressing, and when the assessment for benefits is deemed too large a motion is made that the report be sent back to review the assessment The imposition of the costs of the former hearing and report is in accordance with the usual rule in cases of default. The party applying to set aside an adjudication must pay the expenses incurred in obtaining it. It is apparent that the whole proceedings must be gone over anew.

The commissioners were appointed on the application of those persons who are liable to assessment. This was in accordance with the village charter; whether the award made by a commissioner so appointed is held invalid by the court of appeals, Menges v. City of Albany, 56 N. Y., 374 , the selection' of three new commissioners by the court was wise and should be upheld. The moving party will get a review of the case and a good award in law thereby.

The order should therefore be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.