Opinion
April, 1935.
Present — Lazansky, P.J., Young, Carswell, Scudder and Johnston, JJ.
Order in a condemnation proceeding, confirming in part and rejecting in part the report of an official referee and directing the payment of awards previously made to unknown owners, unanimously affirmed, with costs. The Supreme Court had jurisdiction, through its referee, to determine the question of title as between conflicting claimants even though that question involved passing on the validity of a deed on which one of the claimants based asserted rights. ( Matter of Department of Parks, 73 N.Y. 560; Matter of Opening Eleventh Avenue, 81 id. 436; City of Geneva v. Henson, 195 id. 447.) The court having jurisdiction of the subject-matter, the parties are bound by the practice in which they acquiesced, through which that jurisdiction was exercised, and may not raise any question in respect thereto after so acquiescing. ( City of Geneva v. Henson, 195 N.Y. 447; Matter of City of Buffalo, No. 2, 148 App. Div. 384.) Cases which concern the litigating of title as between the condemner and a claimant or in advance of the making of an award, are distinguishable on these grounds. ( Matter of City of Yonkers, 117 N.Y. 564; City of Geneva v. Henson, 195 id. 447; Matter of Bronx Parkway Commission, 99 Misc. 397.) The evidence amply justified the referee's finding that the appellants had no right to the award because of the instrument under which they claimed being one that in fact had never been executed by the purported grantor, and for the further reason that proof of its execution was insufficient in the face of the proof from the respondents of the grantor's and her successors' continuance in possession and the making of burials in the plot in disregard of rights which would otherwise exist under the instrument in question. ( Ten Eyck v. Whitbeck, 156 N.Y. 341; Civ. Prac. Act, § 384, subd. 4.)