In the Matter of the Application of the Public Service Commission for the First District of the State of New York, Acting on Behalf of the City of New York, Respondent, for the Appointment of Commissioners of Appraisal, etc. Flatbush Avenue Extension - Fourth Avenue Subway. (Proceeding No. 2.); Mary O'Brien and Others, Appellants

Second Department, February, 1915. In the Matter of the Application of the Public Service Commission for the First District of the State of New York, Acting on Behalf of the City of New York, Respondent, for the Appointment of Commissioners of Appraisal, etc. Flatbush Avenue Extension — Fourth Avenue Subway. (Proceeding No. 2.) Mary O’Brien and Others, Appellants. Eminent domain — subway extension. Appeal by certain property owners from three orders of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 16th day of March, 1913, the 34th day of June, 1913, and the 8th day of July, 1913, respectively. [MAJORITY — Per Curiam:] Per Curiam: The appeal from the order of March 16, 1913, condemning the fee of the property in question, and appointing commissioners of appraisal, must be dismissed, with ten dollars costs and disbursements. This order was granted by default and is not appealable. The order of June 34, 1913, denying appellants’ motion that a referee be appointed to try the issue of necessity must be affirmed, with ten dollars costs and disbursements. The order of July 16, 1913, permitting the interposition of an answer, was insufficient to allow said question to be tried. A judgment may not be attacked collaterally, and, until the judgment of condemnation was absolutely set aside, no issue could be raised in the proceeding. In addition, the title to the property had already vested in the city of New York, and, if there is any power under such circumstances to divest the city of title, such power was not exercised in this case. The order of July 8, 1913, confirming the report of the commissioners of appraisal, must be affirmed, with ten dollars costs and disbursements. The evidence fully sustains the finding of the commissioners, and we do not understand that this fact is disputed. Jenks, P. J., Burr, Thomas, Rich and Putnam, JJ., concurred. Appeal from order of March 16, 1913, condemning the fee of the property in question and appointing commissioners of appraisal, dismissed, with ten dollars costs and disbursements. Order of June 34, 1913, denying appellants’ motion that a referee be appointed to try the issue of necessity, affirmed, with ten dollars costs and disbursements. Order of July 8, 1913, confirming the report of the commissioners of appraisal, affirmed, with ten dollars costs and disbursements.