
    In the Matter of the Application of the Commissioner of Public Works of the City of New York, for and on Behalf of The Mayor, Aldermen and Commonalty of The City of New York, Relative to Acquiring Title in Fee to Certain Pieces or Parcels of Land between East One Hundred and Twenty-fifth Street and First Avenue and the Harbor Commissioners’ Line of the Harlem River, and between the Southerly Line of One Hundred and Thirty-second Street and Willis Avenue, and the Southerly Line of One Hundred and Thirty-fourth Street and Willis Avenue, and to a Right of Way or Easement between the United States Pierhead Line of the Harlem River and One Hundred and Thirty-second Street at Willis Avenue, for the Construction of a Bridge over the Harlem River and the Approaches Thereto between One Hundred and Twenty-fifth Street and First Avenue and One Hundred and Thirty-fourth Street and Willis Avenue, etc. The City of New York, Appellant; Mary Anna Palmer Draper, Respondent.
    First Department,
    January 19, 1912.
    Municipal corporations —street opening, city of New York — authority of commissioners — default in filing objections before final report — practice.
    After commissioners appointed m a street opening proceeding in the city of New York have filed their final report they axe functus officio, unless the report be returned to them for correction pursuant to section'986 or section 988 of the city charter.
    Objections to the final report of such commissioners, which must be considered by them in the first instance, cannot be taken after their final report is filed unless the report be returned to them.
    
      It seems, however, that the court may relieve the party of the consequences of a default in making timely service of objections.
    But after the final report of the commissioners is filed the court will not give relief from a default in filing objections, where most of them have been already considered on a former appeal.
    Appeal by The City of New York from an order of the Supreme Court, made at the" New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of November, 1911, resettling a former order entered in said clerk’s office on the 8th day of November, 1911, which granted the application of Mary Anna Palmer Draper to file objections to the report of commissioners of estimate nunc pro tunc as of May 15,1911, and directed that said objections be received.
    
      John J. Kearney, for the appellant.
    
      John C. Shaw, for the respondent.
   Miller, J.:

This proceeding was instituted under chapter 147 of the Laws of 1894, as amended by chapter 664 of the Laws of 1897. Commissioners were appointed January 8, 1896. In December, 1909, by an order of this court, the report of the commissioners was returned for amendment and correction (135 App. Div. 561). Pursuant to that order further hearings were had before the - commissioners and on May 1, 1911, they made an additional, supplemental and amended second partial and separate report, which was duly filed and notice of filing was published in the City Record. The said notice stated that the commissioners would be in attendance at their offices on May sixteenth, at ten-thirty a. M., to hear objections, and that, provided there were no objections, the report would be presented for confirmation on June 15, 1911. On October 4, 1911, the commissioners signed a final additional, supplemental and amended, second partial and separate report, which was noticed for confirmation on October 23,1911, actual notice being given the respondent’s attorney. Thereupon the motion, resulting in the order appealed from, was made, allowing the respondent to file objections nunc pro tunc as of the date May 15, 1911. The excuse for the failure to file the objections in time is that a law clerk, whose duty it was to keep track of the notices in the City Record, failed to discover the notice of May first.

The procedure in- this case is governed by the charter provisions relating to street openings. Sections 981 to 984 inclusive of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1906, chap. 658, and Laws of 1909, chap. 394) provide inter alia for the filing by the commissioners of preliminary abstracts, for the filing with the commissioners of objections thereto, for the making of a final report by the commissioners after a consideration of the objections, or in case none are filed, and for an application to the court to confirm the final report as therein provided. The commissioners have no further duty to perform after their final report is filed, unless it is returned to them pursuant to sections 986 or 988 of the .charter (as amd. by Laws of 1906, chap. 658). They were, therefore, virtually functus officio. (People ex rel. Mann v. Mott, 2 Hun, 672; affd., 60 N. Y. 649.)

While we do not question the power of the court to relieve a party of the consequences of a default, in a proceeding like this, it seems plain that objections, which must be considered by the" commissioners in the first instance, may not be filed after the commissioners have filed their final report, at least unless that report is returned to them. Moreover, we think that it is time that this proceeding be brought to a close. All of the objections which the respondent wishes to file, except the one relating to interest, were considered by this court on the former appeal, arid the commissioners have evidently followed the opinion then written for their guidance.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, ■ P. J., Laughlin, Clarice and Scott, JJ., concurred.

• Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  