
    In the Matter of the Application of the Commissioners of the Palisades Interstate Park for the Condemnation of Certain Lands Situate in the County of Rockland, State of New York. Haverstraw Crushed Stone Company and Clinton Point Stone Company, Appellants; Commissioners of the Palisades Interstate Park, Respondents.
    Second Department,
    March 5, 1915.
    Eminent domain — condemnation of lands for Palisades Interstate Park — discontinuance of proceedings — statutory limitation.
    A proceeding brought by the Commissioners of the Palisades Interstate Park, a body created by statute to condemn leasehold interests in lands, cannot be discontinued by the Commissioners against objection, where more than thirty days have expired since the entry of a final order awarding damages.
    As the right to discontinue such proceedings is not governed by the statute creating the Commission, it is governed by section 3374 of the Code of Civil Procedure.
    The law of this State treats rights in condemnation proceedings as vested when the final order appropriates the land to the use of the petitioners and fixes the compensation therefor, though, it seems, like other jtidgrnents, the award is subject to a motion to set aside for error, mistake or fraud. Where there is no such defect and the thirty days have expired, the proceeding cannot be discontinued merely because of a change of purpose.
    Separate appeals by Haverstraw Crushed Stone Company and another from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Rockland on the 30th day of October, 1914, granting a motion of the Commissioners of the Palisades Interstate Park for leave to discontinue these condemnation proceedings and setting aside part of an order of the Special Term made on the 16th day of January, 1914, which had confirmed the report of the commissioners of appraisement herein.
    The order appealed from imposed terms upon the granting of this application to discontinue and appointed a referee to ascertain and report the appellants’ damages by reason of such discontinuance.
    
      Charles F. Brown [Henry W. Hardon with him on the brief], for the appellant Haverstraw Crushed Stone Company.
    
      Delevan A. Holmes, for the appellant Clinton Point Stone Company.
    
      Edward W. Hatch [George A. Blauvelt with him on the brief], for the respondents.
   Putnam, J.:

These appeals raise the question of the power of the 'petitioner to discontinue condemnation proceedings. The Commissioners of the Palisades Interstate Park are a body created by Laws of 1900, chapter 170, as amended by Laws of 1901, chapter 504; Laws of 1906, chapter 691; Laws of 1910, chapter 361.

On August 2, 1912, the present proceedings were begun to condemn the fee in certain lands in Eockland county and the leasehold interests of these two appellants. On September 16, 1913, awards were made for the damages to these interests, and on January 16, 1914, the awards were confirmed by the court at Special Term. Appeals were then taken, but the present appellants dropped their contest and entered orders discontinuing their appeals on April 6, 1914. On May seventh the petitioner obtained an order to show cause why leave to discontinue the condemnation proceedings should not be granted, which application was based on the statement that these appellants had asked for payment of the awards to them and had served notice of motion returnable on May ninth for an order for such payment.

It was stated that in view of the pending appeal by the fee owner to be heard in this court in June, and the possibility of a further appeal to the Court of Appeals, the Commissioners had determined it to be for the best interests of the State to abandon this condemnation proceeding as to these appellants, and that they had formally passed a resolution to ask leave of court to make such abandonment.

The motion was heard in June, and on June twenty-sixth the court at Special Term handed down a decision granting the application upon certain conditions. In the same month the appeal by the fee owner was argued in this court, and on October 16, 1914, the final order of the Special Term was affirmed. (See 164 App. Div. 957.)

On October twenty-third the order of the Special Term now under review was entered. It granted the petitioners leave to discontinue upon payment to each appellant of the costs and allowances granted to it and to its counsel in the previous order of confirmation, with a fair allowance for services upon that hearing, also a reasonable amount for any other loss which either of such parties might sustain from the abandonment of the proceedings, and designated a referee to take proof and report the amount of such damages.

The Park Commission had no express authority to discontinue. As a spur to active proceedings, it was provided that if the title be not acquired in eighteen months, any person interested could make application to the court to have the proceedings discontinued, which the court might grant or refuse (§ 17, as amd. by Laws of 1906, chap. 691). Upon fifing the report, the Commission are to move for its confirmation (§ 11, as amd. by Laws of 1910, chap. 361). The order of confirmation is to be recorded at length in the county clerk’s office (§ 12, as amd. by Laws of 1910, chap. 361). Any party may appeal to the Appellate Division in the Second Department, which may direct a new appraisement before the same commissioners of appraisal, or before new commissioners whom it may appoint (§ 13). Title, however, is not to be acquired until the award is either paid or deposited "with the county clerk (§ 16).

The absence in the Palisades Act of any express provision permitting the petitioner to abandon the proceedings requires resort to be had to the General Condemnation Law, which applies to all takings of land for a public use. (Code Civ. Proc. § 3359.) It is there very distinctly set forth. It is to be “before the expiration of thirty days after the entry of the final order.” (Code Civ. Proc. § 3374.) The order so described as “final order” is the order of the Special Term making the appraisal a judicial record, from which an appeal lies to the Appellate Division. (Code Civ. Proc. § 3375.)

The order now appealed from was over nine months after this final order. The motion for leave to discontinue was not, served before May seventh, 110 days after the final order, from, which order the Palisades Park Commission took no appeal. The question of power comes up sharply.

Here are two conflicting viewpoints. Such a Commission, in order to carry through a scheme, is not bound to take land at a ruinous price. The petitioner, representing the State, must have a reasonable interval in which to count the cost, and then decide whether to go on or to drop the plan. (Lewis Em. Dom. [3d ed.] § 955.) The law of New York treats the rights as vested when the final order appropriates the land to the use of the petitioner, and fixes the compensation therefor. (Hawkins v. Trustees of Rochester, 1 Wend. 53; People v. Corporation of Brooklyn, Id. 318.) But, like other judgments, this is subject to a motion to set aside for error, mistake or for fraud. Here neither error by the commissioners of appraisal, nor mistake by the parties, is suggested. It is merely a change of purpose, announced over three months after final confirmation.

In such case the locus pcenitentice is not a matter of general discretion. The petitioner cannot recede to the injury of those who, relying on the stability and effects of the order or judgment of confirmation, have been forced to change their business and to prepare to remove their industrial plant. (Matter of Beekman Street, 20 Johns. 269, 273.) Hence the Legislature has taken it from the courts and has itself determined the limit after which the plaintiff or petitioner may not withdraw its proceedings. It must serve the notice of motion to discontinue within the thirty days. (New York, Ontario & Western R. Co. v. Nelson, 152 App. Div. 245.) This limit we are not at liberty to extend. It is fixed so as to end suspense. The period of thirty days of the General Condemnation Law (Code Civ. Proc. § 3374) fits in well with the limit of twenty days allowed by section 13 of the Palisades Act for appeals, as after twenty days the petitioner would be expected to know the attitude of the defending landowners. Not appealing within the twenty days and not moving for leave to discontinue in the thirty days, left the appraisal accepted by the petitioner, after which all other matters of difference under the final order ended on April sixth, when defendants dropped their appeals. Petitioner’s power to abandon is so serious in its effects that, by our New York system, the lapse of thirty days from confirmation makes an impassable limit to its exercise (Matter of Rhinebeck & Connecticut R. R. Co., 67 N. Y. 242; People ex rel. Gas-light Co. v. Common Council, 78 id. 56), at least if the order has been recorded by the county clerk. (Lent v. N. Y. & M. R. Co., 130 N. Y. 504.) Perhaps, without infringing constitutional rights, the State might have continued a discretion to withdraw up to the point when the money should be paid or deposited (Garrison v. City of New York, 21 Wall. 196); but our Legislature has deemed it best to restrict this time of irresolution and further uncertainty to these thirty days; and as the power of condemnation is a creature of statute, the courts cannot question the wisdom of the Legislature. (15 Cyc. 939.)

The learned Special Term did not doubt this general principle. But he regarded his earlier order of confirmation as a matter of form, save as to allowances. (See 83 Mise. Eep. 186.) Hence, he thought that nothing short of the order of the Appellate Division should be the final order which sets running the thirty days. But the Special Term had made and entered the proper order of confirmation as provided by the statute. By acquiescence that order concluded both parties; on one side, the petitioner letting the twenty days pass under section 13 without appealing, and on the defendants’ side by eventually entering an order discontinuing their appeals. Irrespective, therefore, of the absence of any contest (save, perhaps, over costs and allowances), so that confirmation passed •unopposed at Special Term, the present appraisal stands confirmed and accepted, not only by the court, but by the parties themselves. It was thereafter beyond the power of abandonment and withdrawal by the Palisades Park Commission, based on its change of attitude after confirmation.

Hence, I think, the Special Term order should be reversed, with ten dollars costs and disbursements, and the petitioner’s motion denied, with costs.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and petitioner’s motion denied, with costs. 
      
       Since amd. toy Laws of 1914, chap. 15.— [Rep.
     