133 N.Y.S. 251 | N.Y. App. Div. | 1912
This proceeding was instituted under chapter 147 of the Laws of 1894, as amended by chapter 664 of the Laws of 1897. Commissioners were appointed January 8, 1896. In December, 1909, by an order of this court, the report of the commissioners was returned for amendment and correction (135 App. Div. 561). Pursuant to that order further hearings were had before the - commissioners and on May 1, 1911, they made an additional, supplemental and amended second partial and separate report, which was duly filed and notice of filing was published in the City Record. The said notice stated that the commissioners would be in attendance at their offices on May sixteenth, at ten-thirty a. M., to hear objections, and that, provided there were no objections, the report would be presented for confirmation on June 15, 1911. On October 4, 1911, the commissioners signed a final additional, supplemental and amended, second partial and separate report, which was noticed for confirmation on October 23,1911, actual notice being given the respondent’s attorney. Thereupon the motion, resulting in the order appealed from, was made, allowing the respondent to file objections nunc pro tunc as of the date May 15, 1911. The excuse for the failure to file the objections in time is that a law clerk, whose duty it was to keep track of the notices in the City Record, failed to discover the notice of May first.
The procedure in- this case is governed by the charter provisions relating to street openings. Sections 981 to 984 inclusive of the charter (Laws of 1901, chap. 466, as amd. by Laws
While we do not question the power of the court to relieve a party of the consequences of a default, in a proceeding like this, it seems plain that objections, which must be considered by the" commissioners in the first instance, may not be filed after the commissioners have filed their final report, at least unless that report is returned to them. Moreover, we think that it is time that this proceeding be brought to a close. All of the objections which the respondent wishes to file, except the one relating to interest, were considered by this court on the former appeal, arid the commissioners have evidently followed the opinion then written for their guidance.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, ■ P. J., Laughlin, Clarice and Scott, JJ., concurred.
• Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.