W. P. Tanner-Gross & Co. v. City of New York

The appellant has an adequate remedy at law. The questions it seeks to have decided in this action may all be determined in the condemnation proceeding which plaintiff seeks to enjoin (Matter of Mayor, 22 App. Div. 124; Hooker v. City of Rochester, 57 id. 530; affd., 172 N. Y. 665; Matter of City of Rochester [In re Neun], 102 App. Div. 99.) In such condemnation proceeding an appeal may be taken from the order overruling plaintiff’s objections, and upon such appeal all proceedings may be stayed. (Matter of Mayor, supra; Hooker v. City of Rochester, supra; Matter of City of Rochester [In re Neun], supra; Code Civ. Proc. § 1351.) This seems its proper remedy because the questions involved in this action cannot be raised on objections to the commissioners’ report or upon appeal from the order confirming the same. (Matter of Department of Public Parks, 85 N. Y. 459; Matter of Grand Boulevard, 33 App. Div. 210, 212; Matter of Mayor, etc., 186 N. Y. 237.) Order affirmed, with ten dollars costs and disbursements. Jenks, P. J., Mills, Putnam, Kelly and Jaycox, JJ., concurred.