In re Vandervoort Avenue ( 1910 )

Kapper, J.

It is contended by the city that the order confirming the report of the commissioners herein is a finality and cannot be amended or modified by a party to the proceeding having the statutory notice of confirmation. I think the cases cited in support of this contention go no further than to hold that such a report cannot be attacked collaterally. People ex rel. Dady v. Supervisors, 154 N. Y. 381; Mayer v. Mayor, 101 id. 284.

In Matter of Mayor (Whitlock Avenue), 101 App. Div. 589, Mr. Justice Ingraham, writing for the court, said (p. 544) : “ The order of confirmation, when entered, therefore, had the force and effect of a judgment based upon the situation as it existed when the adjudication became final and conclusive upon all parties interested. It could be vacated by the court as a judgment could be vacated for any reason existing at the time it was made which justified a party interested in applying for relief. It could be reversed or modified upon appeal, but to justify the court in vacating the order on notice, some reason must be presented which would justify a court in setting aside a determination finally determining a contest between the respective parties. * * While the Supreme Court has power over its own judgments and orders and the broadest authority to correct any mistake or error to justify the vacation of a judgment or order, there must be found mistake or error. * * * So far as the final order is concerned, it is conclusive from the date of its entry, and while the assessment is not duly confirmed so as to be payable until ten days after its entry in the office of the bureau for the collection of assessments, the binding force as an adjudication becomes established upon its entry and henceforth it can only be attacked by an appeal or application to set it aside based upon some fraud, error or mistake in the proceeding•”

On this application, the Bullion Realty Company, one of the owners whose property was taken for the opening of the street mentioned in the title in this proceeding, asks that the final order of confirmation of the commissioners of assessment herein he opened and their report amended so far as it imposes an assessment upon two blocks, the property of the said realty company, upon the ground that, in a cession of its land to the city for the purposes of the street, that portion of the proposed street fronting on said two blocks was included in such cession with a number of other blocks owned by said company, and that, through the fault of the stenographer to the commissioners upon the hearing in taking down or transcribing a statement of the cession, a clerical mistake was made so as to leave out of the cession the portion fronting on said two blocks, the result of which has been an assessment upon such two blocks contrary to the agreement, stipulation and mutual understanding of the city and the owner embodied in such cession. That such mistake was made, and that it was intended that the cession should include the portion fronting on said two blocks, and that through inadvertence and mistake the same were omitted so as to result in -an assessment that otherwise would not have been imposed, seem to be wholly without dispute. The case, therefore, seems to me to be brought clearly within the exceptions set forth in the case reported in 101 App. Div. 539, supra, and this application to correct the mistake ought to be granted.

The city further contends that, as the order of confirmation was entered on the 31st day of December, 1909, the Bullion Company is guilty of laches in not making this application sooner. But this seems to me to he well overcome by the moving papers which show that the applicant first learned of the burden which the report had inadvertently and erroneously cast upon it when its attorney, on the 1st of June, 1910, examined the records of the tax department for the purpose of ascertaining the condition thereof with regard to the taxes and assessments on said property, and that the applicant was lulled into the belief that the stipulation written down by the stenographer on the hearing actually contained the terms of the cession, inasmuch as it, the Realty Company, had duly made, executed and delivered a deed of conveyance to the city of all its right, title and interest in the bed of the proposed street, inclusive of the part thereof abutting on the two blocks in question.

I do not think the city ought to take advantage of any such palpable error as occurred here, and that the applicant is eníitléd to the relief sought.

Motion granted.