Opinion
Argued June 5, 1906
Decided June 12, 1906
John J. Delany, Corporation Counsel ( Theodore Connoly, John P. Dunn and Thomas C. Blake of counsel), for appellant. John C. Shaw and Joseph S. Frank for Mary A.P. Draper, respondent.
James A. Deering for Gustavus F. Swift et al., respondents.
Arthur S. Hamlin for John H. Johnston et al., respondents.
This proceeding was instituted by the city of New York to acquire title to certain lands, for the purpose of the construction of a bridge over the Harlem river and of approaches thereto. Upon a motion to confirm the report of the commissioners of estimate, who had been appointed in the proceeding, the Special Term of the Supreme Court ordered that the motion should be denied and that the report should be returned to the commissioners, with certain directions for a further report. The city of New York appealed to the Appellate Division from the order of the Special Term and the appeal was dismissed. Leave was given to appeal to this court and the following question was certified for our determination: "Is the order of the Special Term entered herein on March 3, 1904, denying the motion to confirm the report of the commissioners in this proceeding, and returning the report to them for amendment and correction, appealable to the Appellate Division of the Supreme Court by the City of New York?"
We think that the Appellate Division correctly dismissed the appeal to that court and that the question certified should be answered in the negative.
The proceeding by the city was instituted under chapter 147 of the Laws of 1894 and by section 4 of the act it is provided that the provisions of law, relating to the taking of private property for public streets and places in the city of New York, shall be applicable to proceedings under the act. Those provisions are to be found in the Greater New York charter. Section 986 makes provision with respect to the report of the commissioners and permits the Special Term of the Supreme Court to confirm the report in whole, or in part, or to refer the same, or a part thereof, back to the commissioners, or to new commissioners, for revision or correction, or for reconsideration, etc. This section changed the pre-existing law, as contained in the Consolidation Act of 1882, in the respect that there may be a partial confirmation of the report of the commissioners. Section 988 permits the city of New York, or any party, or person, aggrieved by the report, "when confirmed as aforesaid," to appeal to the Appellate Division of the Supreme Court. These provisions of the charter relating to the right to appeal are not affected, nor controlled, by the provisions of the Code of Civil Procedure applicable to appeals. The authority conferred upon the Appellate Division to entertain appeals from orders, made upon the coming in of reports of the commissioners, only exists when there has been an order of confirmation; which confirmation is not required to be of the whole report, but may be partial, under section 986.
The cases of Matter of The City of New York, ( 182 N.Y. 281), and of Real Estate Corporation v. Harper, (174 ib. 123), related to orders of partial confirmation and they decided that an appeal would lie to the Appellate Division in such event. Those cases have no application to the present one, where the order wholly denied the motion to confirm the report. In such a case, we think that, by the plain language of the charter, the right to appeal from the Special Term order is excluded.
The order of the Appellate Division, therefore, should be affirmed, with costs.
CULLEN, Ch. J., GRAY, O'BRIEN, EDWARD T. BARTLETT, WERNER, HISCOCK and CHASE, JJ., concur.
Order affirmed.