In re Brownell Street

17 N.Y.S. 747, 44 N.Y. St. Rep. 485, 63 Hun 628, 1892 N.Y. Misc. LEXIS 494

• Court: New York Supreme Court
• Decided: February 8, 1892
• Status: Published

Opinion

Barnard, P. J.

Brownell street, extended, as proposed by the village of Edgewater, goes through the lands of the Marine Society of the city of Hew York. The proceedings were entirely regular. The Marine Society did not appear before the commissioners of estimate and assessment. After the commissioners had reported, the Marine Society applied to the court at special term to open the default of the Marine Society, and to send back the report of the commissioners, with directions to review the assessment made against the society for benefits resulting from the opening of the street. The court granted the motion to send back the report, upon condition that the Marine Society pay the costs of the former hearing. The default is wholly unexplained. The owner is silent while expensive proceedings are progressing, and, when the assessment for benefits is deemed too large, a motion is made that the report be sent back to review the assessment. The imposition of the costs of the former hearing and report is in accordance with the usual rule in cases of default. The party applying to set aside adjudication must pay the expenses incurred in obtaining it. It is apparent that the whole proceedings must be gone over anew. The commissioners were appointed on the application of those persons who are liable to assessment. This was in accordance with the village charter. The award made by a commissioner so appointed is held invalid by the court of appeals. Menges v. City of Albany, 56 N. Y. 374. The selection of three new commissioners by the court was wise, and should be upheld. The moving party will get a review of the case, and a good award in law thereby. The order should therefore be affirmed, with costs and disbursements. All concur.