In re the Board of Street Opening & Improvement, No. 2

No. 2 | N.Y. App. Div. | Jul 1, 1898

Ingraham, J.:

As we have determined upon the appeal from the order confirming the referee’s report that the proceeding is unauthorized and must be dismissed, it follows that the judgment entered upon the order confirming the referee’s report must be vacated. It is not necessary to determine whether or not it was regular to enter a judgment upon such an order in a special proceeding. We think, however, that rule 27 of the General Rules of Practice does not authorize the entry of a formal judgment. That rule does not provide for the entry of a judgment on an order, but merely allows an order directing the payment of a sum of money to be enrolled and docketed as if it were a judgment. It seems to me clear that, under the provisions of the Code, if an action is commenced by the service of a summons, the relief granted to either party is evidenced by the final judgment. Where the appropriate remedy is by petition, and the final order is entered directing a party thereto to pay a sum of money to the party in whose favor the order is entered, either party is entitled to have the order enrolled and docketed as a judgment, but a final order in a special proceeding cannot be the basis of a separate and independent judgment.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate the judgment entered by the petitioner granted, with ten dollars costs.

Barrett, Rumsey and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.