In the Matter of the Application of the City of New York to Acquire Certain Real Estate at Massapequa, in the Towns of Hempstead and Oyster Bay, in the County of Nassau, for the Purposes of Water Supply

In the Matter of the Application of the City of New York to Acquire Certain Real Estate at Massapequa, in the Towns of Hempstead and Oyster Bay, in the County of Nassau, for the Purposes of Water Supply. Second Department, April 19, 1907. Practice — appeal — Appellate Division cannot certify to Court ot Appeals after expiration of two terms. When the term at which an order of the Appellate .Division was made has expired as well as the succeeding term, the court has no power to allow au . appeal to the Court of Appeals-and to certify that a question has arisen which should be reviewed by that court. The permission cannot be granted under the-guise of-an order nunc pro tunc as of the original term at which the order was made. t Motion for leave to appeal to the Court of Appeals. William B. Ellison, Corporation Counsel, for the motion. Augustus _ZY. ELa/nd and Joseph A. Flannery, opposed. [MAJORITY — Jenks, J.:] Jenks, J.: This is a motion made at this term of this court for .an order nuno pro tuno as of the 7th day of March, 1907, the date of filing the notice of appeal to the Court of Appeals, allowing an appeal herein to the Court of Appeals and certifying that a question lias' arisen which ought to be reviewed by that court. Our order, of which a review is sought, .was made on the llth day of January, 1907. The ensuing term of this court began on the fourth Monday of February, 1907, and ended on March' 22, 1907. The present term began on the third Monday of April, 1907, If we could grant this motion we would do so, but our view, is that our power was spent with the lapse of the January and the March terms (Porter v. International Bridge Co., 163 N. Y. 79, 85), and we cannot now by an order nuno gyro tuno “ do indirectly ” what we are “ forbidden to do directly.?’ (Guarantee Trust Co. v. P., R. & N. E. R. R. Co., 160 N. Y. 1.) For this reason the motion "is denied. Hooker, Gaynor, Rich and Miller, JJ., concurred. Motion denied, with ten dollars costs.