In the Matter of the Application of Jora Grab, Respondent, for the Appointment of Commissioners to Ascertain Amount of Damages to which Applicant is Entitled by Reason of Change of Grade.; The Village of New Rochelle, Appellant

In the Matter of the Application of Jora Grab, Respondent, for the Appointment of Commissioners to Ascertain Amount of Damages to which Applicant is Entitled by Reason of Change of Grade.; The Village of New Rochelle, Appellant. Appeal — Order Appointing Commissioners to Ascertain Damages prom Change oe "Grade oe Tillage Street. An order of the Appellate Division, affirming an order of the Special Term appointing commissioners to ascertain the damages of a property owner hy reason of a change of grade of a village street, although made in a special proceeding is not a final order, and therefore (Code Civ. Pro. § 190) is not appeal-able as of right to the Court of Appeals. Matter of Grab, 31 App. Div. 610, appeal dismissed. (Submitted October 5, 1898; decided October 18, 1898.) Appeal from an order of, the Appellate ■ Division of the Supreme Court in the second judicial department, entered July 15, 1898, affirming an order of the Special Term, appointing commissioners to ascertain the amount of damage sustained by respondent by reason of the change of the grade of a street in front of his property in the village of Hew Rochelle, Westchester county. The facts, so far as material, are stated in the opinion. J. Addison Young for appellant. The order appealed from is a final order in a special proceeding, and as it finally determines and upholds the special proceeding, it is re viewable by the Court of Appeals. (Code Civ. Pro. § 190; People ex rel. v. Campbell, 152 N. Y. 55; Peri v. N. Y. C. & H. R. R. R. Co., 152 N. Y. 526; Matter of City of Utica, 73 Hun, 256; Matter of Broadway & S. A. R. R. Co., 69 Hun, 275.) John J. Oréiihcm and Michael J. Tierney for respondent. The appeal to this court from the order of the Appellate Division, affirming the order of the Special Term appointing commissioners, should be dismissed, as it is not an order finally determining the proceeding. (Code Civ. Pro. § 190, snbd. 1; People ex rel. v. Smith, 24 Hun, 66; 85 N. Y. 628; Merriam v. W. & P. Lith. Co., 155 N. Y. 136; Jewelers' Merc. Agency v. Rothschild, 155 N. Y. 255; People ex rel. v. Barker, 155 N. Y. 308; Van Arsdale v. King, 155 N. Y. 325.) [MAJORITY — Per Curiam.] Per Curiam. John Grab, the owner of real estate in the village of New Rochelle, claiming to be aggrieved by a change of grade in the street in front of his property, instituted this proceeding for the purpose of securing damages which he claimed to have sustained. Such proceedings were had therein that the court, at Special Term, appointed three commissioners to ascertain the amount of the damages. From that order an appeal was taken to the Appellate Division, second department, where it was affirmed, and from that order a further appeal was taken to this court. The appeal must be dismissed, for while the order is in a special proceeding, it is not a final order and, therefore, this court has not jurisdiction to review it. (Code Civil Procedure, § 190.) The appeal should be dismissed, with costs. All concur. Appeal dismissed.