
    (30 App. Div. 609.)
    In re LEXINGTON AVE. DEERING v. SCHREYER.
    (Supreme Court, Appellate Division, First Department:
    June 10, 1898.)
    Final Order—Special Proceeding—Separate Judgment.
    Where relief is appropriately sought by petition, and the final order is entered directing a party thereto to pay a sum of money to the party in whose favor the order is entered, either party is entitled to have the "order enrolled and docketed as a judgment; but a final order in a special proceeding cannot be the basis of a separate and independent judgment.
    Appeal from special term, New York county.
    In the matter of the opening of Lexington avenue from 97th to 102d streets. Petition of James A. Deering for an allowance of attorney’s fees from the award granted John Schreyer. Judgment for petitioner. From an order denying a motion to vacate the judgment, defendant appeals.
    Reversed.
    Argued before BARRETT, RÜMSEY, McLAUGHLIN, and IN-GRAHAM, JJ.
    Alex. Thain, for appellant.
    Clarence L. Barber, for respondent.
   INGRAHAM, J.

As we have determined upon the appeal from the order confirming the referee’s report that the proceeding is unauthorized and must be dismissed (52 N. Y. Supp. 203), it follows that the judgment entered upon the order confirming the referee’s report must be vacated. It is not necessary to determine whether or not it was regular to enter a judgment upon such an order. We think, however, that rule 27 of the General Rules of Practice does not authorize the entry of a formal judgment in a special proceeding. That rule does not provide for the entry of a judgment on an order, but merely allows an order directing the payment of a sum of money to be enrolled and docketed as if it were a judgment. It seems to me clear that under the provisions of the Code, if an action is commenced by the service of a summons, the relief granted to either party is evidenced by the final judgment. Where the appropriate remedy is by petition, and the final order is entered directing a party thereto to pay a sum of money to the party in whose favor the order is entered, either party is entitled to have the order enrolled and docketed as a judgment; but a final order in a special proceeding cannot be the basis of a separate and independent judgment.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion to vacate the judgment entered by the petitioner granted, with $10 costs. All concur.  