City of Johnstown v. . Wade

Parker, Cli. J. The city of Johnstown, desiring to acquire for the purposes of a street certain real estate, the title to which was in Mortimer Wade, instituted this proceeding for that purpose. Some time thereafter an agreement was reached as to the value of the property, and in pursuance of a stipulation of the parties a final order was entered January 27th, 1897, and the judgment awarding damages was finally docketed August '10th, 1897. Later the municipal authorities reached the conclusion that, in the proceedings taken by the common council to open the street, certain steps had been omitted which the statute required, ‘ and, therefore, the assessment which might be levied upon property benefited to pay the award in the condemnation proceedings and other necessary expenses would be invalid. For the purpose of instituting all the proceedings anew the city of Johnstown made application *51 to the court at a Special Term about November 15th, 1897, that this proceeding, including the order and final judgment, be vacated and set aside. The Special Term so ordered, but on an appeal to the Appellate Division the order was reversed, and it is from the later order the appeal now before us is taken. A number of questions are suggested for our consideration relating to the authority of the Special Term to entertain the application and to the merits of the application, but we cannot consider them for the reason that this court is without jurisdiction to review the order appealed from. While it is true it is the last order made in this special proceeding, it is not a final order in such proceeding within the meaning of the Constitution and section 190 of the Code. This precise question was before this court in Van Arsdale v. King (155 N. Y. 325), in which case an order denying a motion to vacate a judgment was sought to be reviewed. As the question was exhaustively considered at that time by the court it will not be reopened for further discussion. The appeal should be dismissed, with costs. All concur. Appeal dismissed.