In Re the Board of Street Opening & Improvement

| NY | Dec 18, 1888

We think the appeal should be dismissed. The authority to establish the public place, or park in question, is found in the act of the legislature contained in chapter 451 of the Laws of 1884. In its second section, the act provides that the proceedings to acquire the title to the lands described shall be taken "in the manner prescribed in and subject to all the provisions of section 955 of chapter 410 of the Laws of 1882," which is known as the consolidation act. That section of the consolidation act provides that "the proceedings to acquire title to such lands shall be had pursuant to such acts as shall then be in force relative to the opening, etc., of streets, roads, avenues and public squares and places in the city of New York, which said acts are hereby made applicable to the streets and avenues, etc., and to the proceedings authorized thereby." By force of these provisions we are remitted, in our consideration of what proceedings are authorized in such matters, to the general street opening acts. The procedure thereby prescribed has been construed to preclude an appeal to this court from the order of the Supreme Court confirming the report of the commissioners. (Matter of Department of PublicParks, 85 N.Y. 459" court="NY" date_filed="1881-06-14" href="https://app.midpage.ai/document/in-the-matter-of-the-dept-of-public-parks-3624826?utm_source=webapp" opinion_id="3624826">85 N.Y. 459; Matter of Commissioners of Central Park, 50 id. 493.) The theory underlying this construction is that these proceedings form an independent and complete system, especially created by the legislature, and not connected with or controlled by the provisions of the Code of Civil Procedure applicable to appeals to this court.

But the appellants contend that the order is made appealable, because the effect of the General Term order was to overrule the objections of the landowners and their request that the proceedings be discontinued. They argue that the question of the discontinuance does not come before the commissioners, but that it was a distinct and independent proceeding, provided for to stop further action on their report, upon its coming into the Supreme Court.

Section 990 of the consolidation act, to which this proposition has reference, provides, when that objection is competently made, that "the court shall order the same to be discontinued." But it does not appear in the record before us that any order was ever made upon these objections and request, independently, or embodied in the order made by the court, and we could consider nothing on an appeal save the orders which have been made in the courts below and which have been appealed from. We do not think that the order of the Special Term, which simply confirms the report of the commissioners, can be construed to intend more than the plain import of its language.

The appeal should be dismissed, with costs.

All concur, except EARL, J., not voting.

Appeal dismissed.