City of Buffalo v. FERRY-WOODLAWN REALTY CO., INC. ( 1960 )

Order of the Appellate Division, insofar as it affirms Special Term’s denial of defendants’ motion with respect to their special appearance, affirmed, without costs. Question certified, insofar as it relates to this part of defendants’ appeal, answered in the affirmative. Order of the Appellate Division denying plaintiff’s motion to dismiss the appeal and order of the Appellate Division affirming preliminary order of condemnation reversed and the matters remitted to the Appellate Division for further proceedings in accordance with the following memorandum: In this condemnation proceeding, both plaintiff city and defendants appeal by permission of the Appellate Division upon certified questions. Since no appeal lies to the Appellate Division from the preliminary order of condemnation (see, e.g., Yaras v. City of Albany, 2 N Y 2d 844, affg. 1 A D 2d 989; City of Buffalo v. Hayman, 283 App. Div. 1010, motion for leave to appeal dismissed 307 N. Y. 685), the order of the Appellate Division, denying plaintiff’s motion to dismiss the appeal taken by defendants to that court from Special Term’s order granting such preliminary arder of condemnation, should be, on plaintiff’s appeal, reversed, without costs, the matter remitted to the Appellate Division with directions to dismiss said appeal and the question certified answered in the negative. And, in view of this disposition, on the appeal by defendants from the order of the AppeEate Division, the order, insofar as it affirms Special Term’s preliminary order of condemnation, must likewise be reversed and remitted for dismissal. The question certified, insofar as it relates to this part of defendants’ appeal, should not be answered. Question certified on plaintiff’s appeal answered in the negative. Question certified on defendants’ appeal not otherwise answered.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Burke and Foster. Judge Van Voorhis dissents in the following opinion: