
    
      In re Opening of One Hundred and Sixty-Third Street. In re Mayor, Etc., of City of New York.
    
      (Supreme Court, General Term, First Department.
    
    October 16, 1891.)
    Eminent Domain—Condemnation foe Street—Special Pboceedino.
    A proceeding by a city to acquire title to land for use as a public street, instituted by an application to the court, on notice to the persons interested, for the appointment of commissioners of estimate and assessment, who report to the court, but whose report possesses no validity until confirmed, when it becomes a judgment of the court, conclusive in its character, is a “special proceeding, ” within the meaning of Code Civil Proc. N. Y., which provides that an action is an ordinary prosecution in a court of justice by a party against another party for the enforcement or protection of a right, or the redress or prevention of a wrong, or the punishment of a public offense, (section 3333;) and every other prosecution by a party for either of such purposes is a special proceeding, (section 3334;) and all proceedings therein are subject to the control of the court, and it may, in the exercise of its discretion, permit a party to file objections to the commissioners’ report after the expiration of the time required by the notice published by them.
    Appeal from special term, New York county.
    Proceedings instituted by the mayor, aldermen, and commonalty of the city of New York to acquire title to certain real estate for a public street. The mayor, etc., appealed from an order granting a motion made by Martin B. Brown for leave to file objections to the report of the commissioners of estimate and assessment therein.
    Affirmed.
    Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
    
      Carroll Berry, for appellant. James A. Deering, for respondent.
   Ingraham, J.

The respondent omitted to file his objections with the commissioners until the day after the time required by the notice published by them, and this is an appeal from an order made at special term granting leave to file such objections. The first question presented is whether or not the court had power to allow the respondent to file the objections after the time had expired. It seems to me clear that this is a special proceeding, within the provisions of section 3334 of the Code. By section 3333 it is provided that an action is an ordinary prosecution in a court of j ustice by a party against another party for the enforcement or protection of a right, or the redress or prevention of a wrong, or the punishment of a public offense; and by section 3334 every other prosecution by a party for either of the purposes specified in the last section is a special proceeding. This proceeding was instituted by the mayor, aldermen, and commonalty of the city of Hew York for the purpose of acquiring the title to certain real estate for use as a public street. Such a proceeding is instituted by the municipal corporation applying to the court, on notice to those interested, for the appointment of commissioners of estimate and assessment, who report to the court, but whose report possesses no validity until confirmed by the court, and by the confirmation of such report it becomes the judgment of the court, conclusive in its character. In re Arnold, 60 N. Y. 27; Dolan v. Mayor, etc., 62 N. Y. 474, where Sapallo, J., says: “The supreme court acquired jurisdiction of the matter by the application of the city for the appointment of commissioners, and all the parties interested had an opportunity then to litigate the validity of the resolution ordering the improvement. That the proceedings for such assessments are taken before the court, and the confirmation of the report of the commissioners is a judgment pronounced on a full hearing of the parties, and conclusive in its character as to all questions litigated or which might have been litigated in the proceeding;” and it was held that this principle precludes a review of the regularity of such a proceeding in an action by the party assessed, unless, perhaps, in case of such a fraud or other circumstance as would authorize an action to set aside an ordinary judgment. This proceeding, therefore, being a proceeding before the court, in which its final judgment is a conclusive adjudication upon all persons interested, it clearly falls within the definition of a special, proceeding as defined by section 3334 of the Code, before cited, and all the proceedings, either before the court or before the commissioners appointed by the court, are in court, and subject to its control. That the court has inherent power over its own judgments and proceedings to make such order as justice requires to relieve a party from a default or a mistake, and that such power is not limited by the Code, is well settled. See Hatch v. Bank, 78 N. Y. 489, and cases there cited. But if express authority for such an order was necessary, it is found in section 724 of the Code, where the court has power to relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding. In lie One Hundred and Eighty-Hirst Street this court at special term set aside the order confirming the report of the commissioners, and allowed a property owner to come in and file objections to the award. There the court not only allowed the petitioner to file his objections, but set aside the report and order confirming the report, so as to allow him an opportunity to be heard. This order was affirmed by the general term, (see 12 N. Y. Supp. 345,) and by the court of appeals, (126 N. Y. 641, 27 N. E. Rep. 852,) and is ample authority for the order of the court below. In this case the objections of the respondent were tendered to the commissioners one day too late, and the affidavits upon which the motion was granted excuses the omission, so as to justify the court in relieving him from the default. We think, therefore, the court below had power to grant the order appealed from, and that, under the circumstances, such power was properly exercised. Order appealed from should therefore be affirmed, with $10 costs and disbursements.

Van Brunt, P J., concurs in result. Daniels, J„ concurs.  