Matter of County of Nassau

Full title: In the Matter of Acquiring Title by the COUNTY OF NASSAU to Certain Lands…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 13, 1941

261 App. Div. 118 (N.Y. App. Div. 1941)

24 N.Y.S.2d 639

Opinion

January 13, 1941.

Appeal from County Court of Nassau County, JOHNSON, J.

James M. O'Connell, for the appellant.

Walter J.A. Mack, for the respondent Mildred McGinity.

PER CURIAM.

The first order appealed from directed that the report of the commissioners of estimate in the proceeding be amended so as to direct that payment of an award for a certain damage parcel be made to respondent Mildred McGinity, instead of to an "unknown owner;" the second denied the application of the appellant for an order directing that the name of the "unknown owner" of the same damage parcel be changed to "Joseph Pera."

The orders are not appealable. They are intermediate and are merged in the final order confirming the report of the commissioners, from which an appeal is allowable. (Nassau County Administrative Code [Laws of 1939, chap. 272], § 11-57.0.) Further, the County Court had no authority to make such orders. Assessment of the damage is made by the commissioners and awards are made by the final order confirming the report of the commissioners. A petition for an order directing the payment to a petitioner of an award to an unknown owner should be made after the entry of the final order. The petitioner-respondent McGinity was not entitled to the award. ( Matter of Van Etten v. City of New York, 226 N.Y. 483; Gates v. De La Mare, 142 id. 307.) However, she had a lien upon the award to the extent at least of the amount of the tax lien and interest.

The appeals should be dismissed, with ten dollars costs and disbursements to the respondent Mildred McGinity, without prejudice to such action or proceeding as appellant may be advised to bring, including the relief afforded by section 11-64.0, subdivision c, of the Nassau County Administrative Code.

LAZANSKY, P.J., HAGARTY, CARSWELL, TAYLOR and CLOSE, JJ., concur.

Appeals dismissed, with ten dollars costs and disbursements to respondent Mildred McGinity, without prejudice to such action or proceeding as appellant may be advised to bring, including the relief afforded by section 11-64.0, subdivision c, of the Nassau County Administrative Code.