In the Matter of the Application of the Department of Public Works of the City of New York to Acquire Title to Land for the Construction of the Jerome Avenue Approach to the New Macomb's Dam Bridge. Euphemia A. Hawes, as Executrix of Granville P. Hawes, Deceased, et al., Appellants; Mary Hynes, Respondent

In the Matter of the Application of the Department of Public Works of the City of New York to Acquire Title to Land for the Construction of the Jerome Avenue Approach to the New Macomb’s Dam Bridge. Euphemia A. Hawes, as Executrix of Granville P. Hawes, Deceased, et al., Appellants; Mary Hynes, Respondent. Mattter of Jerome Avenue, 72 App. Div. 619, affirmed. (Argued November 12, 1902; decided December 2, 1902.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 27, 1902, which affirmed an order of Special Term denying a motion to vacate and cancel a judgment for costs entered upon an order of the Appellate Division. The following question was certified: “ Does the unreversed and unmodified order herein that was entered in the office of the clerk of New York county on July 5, 1901, require that the judgment for costs on the intermediate appeal, in the sum of $448.43, entered herein, in said clerk’s office, on April 26, 1901, in favor of the respondent and against the appellants personally, be vacated and canceled of record, or entitle the appellants to an order to that effect; it further appearing that, pending the appeal to the Court of Appeals, and prior to its decision thereon, the fund from which the remittitur of that court directed that such costs be deducted had been ■wholly disbursed for expenses of the proceeding, other than said costs by stipulation of the attorneys for the respective parties, without any express reservation or agreement concerning said costs or judgment ? ” Barclay E. V. McCarty and Jared C. Baldwin, Jr., for appellants. John J. Hynes and Joseph A. Flannery for respondent. [MAJORITY] Order affirmed, with costs, and question certified answered in the negative; no opinion. Concur: Parker, Ch. J., O’Brien, Bartlett, Haight, Martin and Cullen, JJ. Absent: Vann, J.