Opinion
November Term, 1901.
H.T. Dykman, for the appellant.
Wilson Brown, Jr., for the respondents.
This is an appeal by the board of trustees of the village of White Plains from an order granting a motion made by the board to discontinue proceedings instituted by it to open a public highway. The parties stipulated that the appellant raises only the question of law, "that the Court had no power except to discontinue on payment of ordinary taxed costs and disbursements in an action or special proceeding."
There is no doubt of the power of the court to order a discontinuance. ( Matter of Petition of Butler, 101 N.Y. 307.) Indeed, this is conceded in the brief of the appellant. This being so, the question is fully answered in Matter of Waverly Water Works Co. ( 85 N.Y. 478).
If it were not for the stipulation above referred to, the clause of the order which provides for the payment of the expenses and damages upon the report of the referee, without confirmation thereof by the court, might well be subject to review.
The order should be affirmed, with costs.
BARTLETT, HIRSCHBERG, JENKS and SEWELL, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.