
    (55 Misc. Rep. 320.)
    In re POPHAM AVE. IN CITY OF NEW YORK.
    (Supreme Court, Special Term, New York County.
    July 23, 1907.)
    Eminent Domain—Opening Avenue—Pboperty Taken.
    Where the question whether certain property was embraced in a proceeding for the opening of an avenue in the city of New York and properly the subject of an award was determined on a motion to waive the order appointing commissioners, it will not be considered on application for confirmation of the commissioners’ report.
    In the matter of Popham avenue. On motion to confirm report of commissioners of estimate and assessment. Motion granted.
    
      William B. Ellison, Corp. Counsel (John P. Dunn and F. W. Gahrmann, of counsel), for the motion.
    John C. Shaw, opposed.
   BISCHOEF, J.

Asserting that property not embraced within the proceeding has been taken and made the subject of awards, thus increasing the assessments, certain property owners assessed oppose the confirmation of the report. The question whether the land taken was properly within the scope of the proceedings depends upon a construction of the resolution of the board of estimate and apportionment, the basis of the proceedings, and, further, upon the order whereby the commissioners were appointed. Concededly, the order justifies the city’s position that this land was included, and upon an earlier motion by these property owners for a modification of the order, so far as to exclude the land in conformity, as was claimed, with the intention of the resolution referred to, the application was denied. Apparently the court decided the question of construction before it; and there is direct authority for the proposition that the application to modify the order was the proper means to a determination of the true scope of the proceeding, a determination which cannot with propriety be made upon the motion to confirm the report. Matter of Grand Boulevard and Concourse, 33 App. Div. 210, 53 N. Y. Supp. 331.

I can find no ground for the assumption of counsel for the respondents that the motion was denied upon the theory that the point should be reserved until the motion for confirmation was heard. Such a result would have been contrary to the rule announced by the Appellate Division in the case referred to, and there is nothing in the record to give color to the contention. Under the circumstances, there is no escape from the conclusion that the point sought to be raised by the objecting parties has been determined by an order in the proper form of proceeding, and cannot be again presented for determination now.

Motion to confirm report granted.  