238 A.D. 850 | N.Y. App. Div. | 1933
Amended final decree reversed and set aside on the law and the facts, with costs, and the motion for the amendment of the final decree entered on July 10, 1930, denied, with ten dollars costs. The decree entered July 10, 1930, was final. (Matter of City of New York [Elm Street], 239 N. Y. 220, 225.) The Special Term was without power, on the showing made herein, to amend the final decree (Herpe v. Herpe, 225 N. Y. 323), there being no showing sufficient to sustain a holding that there had been any irregularity or fraud that would warrant a setting aside of the final judgment in whole or part. The claimant had adequate opportunity to adduce on the hearing of objections to the tentative decree that which it adduced on the unauthorized rehearing. The city was not estopped by any acts of the assistant corporation counsel. (Matter of City of New York [Boulevard], 185 App. Div. 315; Matter of Opening Belmont Street, 128 id. 636, 638; Callahan v. Mayor, etc., 66 N. Y. 656; Robinson v. Oceanic Steam Nav. Co., 112 id. 315, 324; Buckles v. State of New York, 221 id. 418, 424.) Moreover, it appears that the granting of the motion for a rehearing of matters disposed of in the final decree was opposed by the corporation counsel and the amended decree entered herein was entered on a recital of opposition by the corporation counsel. The claimant had an opportunity to present that which was adduced on the unauthorized rehearing when the hearing of objections to the tentative decree was had. The court’s rulings, as contained in the final decree, could be reviewed only by an appeal or on a motion to set aside on a showing of fraud, irregularity or mistake. The court was without power to sit in appellate review of its prior determinations after the entry of the final decree. Kapper, Hagarty, Carswell and Tompkins, JJ., concur; Lazansky, P. J., concurs in result.
