In Re Opening, Widening & Improvement of Flushing Avenue

Andrews, J. The first motion to set aside the order of July 5, 1881, appointing commissioners of estimate and assessment, was founded upon an alleged irregularity in granting the order, and was denied, and an appeal was thereupon taken by the appellants to the General Term, from the order denying the motion. The second motion was made pending the appeal from the order denying the first motion, which second motion was to set aside the same order of July 5,1881, and also an order made November 14, 1881, confirming the report of the commissioners appointed by the order of July 5,1881. The affidavits upon which the second motion was made set out the facts relating to the irregularity. claimed in respect to the order of July 5, 1881, substantially as in the papers used on the first motion, but thp main ground relied upon for setting aside the order and subsequent proceedings was that the acts under which the improvement of Flushing Avenue was made, were unconstitutional and void. The , second motion was denied by an order of the Special Term, December 16, 1882, but on what particular ground does not appear. An appeal from that order was taken to the General Term, where the order was affirmed, and from that order of. affirmance an appeal was taken to this court, which affirmed the orders of the General and Special Terms. (95 N. Y.135.) After the affirmance by this court of the order made on the second motion, the present appellants then moved the argument at General Term of the appeal from the order made on *447 tlie denial of the first motion, and on application of the respondents the General Term dismissed the appeal on the ground that the appellants were concluded by the order made in the second motion, from raising the question as to the irregularity in the order of July 5, 1881. The present appeal is from the order of dismissal. It does not appear from the papers presented that the question of the regularity of the order of July 5,1881, was decided in the second motion. The affirmance by this court of the order made in that motion proceeded upon laches and other grounds indicated in the opinion delivered on that occasion. These grounds rendered it unnecessary to determine the question of the regularity of the order of July 5,1881. They are not inconsistent with an admission of its irregularity. The right to have the appeal in the first motion considered was not, we think, precluded by the order in the second motion, and although upon the papers the right seems to be technical, and not substantial, we are of opinion that the dismissal of the appeal was erroneous. The order should, therefore, be reversed. All concur. Order reversed.