In re Folts Street

29 A.D. 69

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Per Curiam:

The trustees had power to discontinue tlieir proceedings for the extension of Folts street, which power they effectually exercised by tlieir resolution of May 17, 1897, and they could not hy their resolution of December 3, 1897, rescinding the resolution of May 17, 1897, restore those proceedings as against the railroad corporations, which, in the meantime, had acquired new rights by chapter 754 of the Laws of 1897, which took effect July 1, 1897.

But the trustees had no power by the resolution of May 17,1897, to discontinue the special proceeding against the railroad corporations then pending in the Appellate Division without the consent of the corporations, or without leave granted by the court upon such terms as should be imposed. The resolution of May 17, 1897, had no effect on that appeal, which either party had the right to prosecute to a decision, and the successful party had the right to enter the order of the Appellate Division and collect the costs awarded. The railroad corporations not having appealed from the order of the Appellate Division, if it is appealable, the proceeding as to the corporations is dead, except for the purpose of enforcing the payment of costs, and there is no occasion for setting aside the order of the County Court entered March 1, 1897, and affirmed by the Appellate Division by the order entered October 2, 1897, in the office of the clerk of the county of Herkimer, and we find no authority vesting the County Court with power to entertain a motion to set aside Its original order affirmed by this court.

The appeal should be dismissed, with ten dollars 'costs and disbursements.

All concurred.

Appeal dismissed, with ten dollars costs and disbursements.