67 How. Pr. 341 | N.Y. Sup. Ct. | 1884
This is a motion made on behalf of certain property owners to set aside and vacate the order made herein,
It is now well settled that a party may waive a statutory
Now in this case I think it may be argued, with very great force, that it is too late for the parties making this motion to object to the jurisdiction of the court, or to the right of the park commissioners to institute these proceedings. It appears by the affidavit of Mr. Berry, the assistant corporation counsel having charge of these proceedings, that on the 5th of November, 1878, notices that a motion for the appointment of commissioners of estimate and assessment would be made on November 30,1878, were posted upon the lines of the proposed park-way, in the manner prescribed by law, and that notice was also duly published in the City Record; that on the 4th of December, 1878, the commissioners were duly appointed upon the motion of the then counsel to the corporation, without any opposition having been made by any interested property owner.
That no appeal was ever taken from the said order; that thereafter the commissioners of estimate and assessment proceeded in the performance of their duties, and on or about the 20th day of December, 1880, deposited their estimated report for objections, and published and posted notices of the same, and that their report would be presented to the court for confirmation on February 10,'1881. That on March 5, 1881, the bill of costs of the commissioners was presented to the court for taxation. That the same was referred to a referee to take proof and report. That counsel representing some, if not all, of the present moving parties, appeared before the referee on numerous occasions in opposition to the taxation of said bill. That the referee reported to the court on the 19th of April, 1881, and that the same counsel opposed the confirmation of said report. That on the 5th of May, 1881, Mr. justice Barrett taxed said bill of costs at the amount reported
That on the 29th of May, 1882, the general term affirmed the order of the special term, taxing said costs. That on the 29th of August, 1882, the report of the commissioners was presented at special term for confirmation. That the motion to confirm the same was opposed, among others, by the counsel who had appeared in opposition to the taxation of the costs. That on the 9th of January, 1883, an order was entered confirming said report. That on the 6th and 14th of February, 1883, appeals were taken from the order of confirmation, by both Yan Cortlandt and the city. That in March, 1883, these appeals were withdrawn in open court, and that under the statute of 1874 (chap. 604) the awards became due and payable immediately upon the confirmation of the commissi oners’ report. Under these circumstances, I think it must be held that the moving parties are now precluded from objecting to the jurisdiction of the commissioners or of the court. Most, if not all of them, have been heard at every step and stage of the proceedings, and their objections have been duly considered. All have been notified as required by law. If there was anything to be passed upon by the special term, or the general term, which was not urged by counsel, I think such matters must be deemed to have been waived. It certainly would be strange, that a party by aquiescence, or failure to present objections, can be held to have waived an absolute constitutional right, and yet that such party cannot be held to have waived the question of jurisdiction arising out of the interpretation or construction of a statute. It does not seem necessary to go further upon this point than to refer to the opinion of the court of appeals in the matter of Cooper, hereinbefore cited. As to such objections as have already been heard and argued at the special and general terms, I shall hold myself precluded from discussing them, and as to such objections as