#### In the Matter of the Application of the New York, Westchester and Boston Railway Company, Respondent, to Acquire Title to Real Property of Selina Weeks, Appellant.

Second Department,

June 20, 1913.

Real property — suit to enjoin erection of embankment in street — condemnation proceedings pending appeal — motion to set aside condemnation proceedings after reversal of judgment dismissing complaint in suit for injunction.

Where the Appellate Division affirmed a judgment dismissing the complaint in a suit by an abutting owner to enjoin a railway company from erecting an embankment in a street because said street was not a public one and, pending an appeal to the Court of Appeals, the railway com*559pany, after offering the plaintiff a certain amount, began condemnation proceedings, in which it used the judgment roll as evidence, but before the commissioners filed their report the Court of Appeals reversed the judgment of the Appellate Division and granted a new trial, a motion by the plaintiff to set aside the condemnation proceedings, including the report of appraisal and for costs, should have been granted, and an order denying her motion upon condition that the judgment in the condemnation proceedings should not be used upon the retrial of the action, so far as it affected the issue as to whether or not the street was a public one, should be reversed.

Appeal by the defendant, Selina Weeks, from part of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 26th day of February, 1913.

*A. P. Bachman [John Oscar Ball*with him on the brief], for the appellant.

*J. Addison Young,*for the respondent.

Per Curlam:

Mrs. Weeks’ action to enjoin the petitioner from erecting an embankment in Cedar street and so cutting off access to her lots, failed originally because Cedar street was not found to be a public street. Her complaint was, therefore, dismissed. This Appellate Division affirmed the dismissal, holding that she should have amended, as the pleadings were inconsistent with a recovery for rights or easements in a private street *(Weeks*v. *New York, Westchester & Boston R. Co.,*145 App. Div. 535).

The railroad company then took condemnation proceedings as to the rights of Mrs. Weeks, first offering her $3,000, and upon such proceedings introduced in evidence the judgment roll in *Weeks*v. *New York, Westchester and Boston Pailway Company.*

Although at different hearings the pendency of the appeal was stated to the commissioners, they decided to proceed. The Court of Appeals on December 31,1912, reversed the judgments of this court, holding that Mrs. Weeks had a right to relief under her complaint (207 N. Y. 190). On January 10, 1913, *560the commissioners nevertheless filed their report (which has not been confirmed), appraising the interests of Mrs. Weeks at $1,000. She then moved to set side the condemnation proceedings, including the report of appraisal, also for her costs. The Special Term denied her motion upon certain conditions. These were that the judgment in this condemnation proceeding should not be used upon the retrial of the main case *“*as affecting the question or issue in said action, whether or not Cedar Street, so-called, is a public highway,” and also that if Cedar street be held a public highway, then this proceeding and the' offer under it be wholly set aside.

Mrs. Weeks is entitled to a retrial without being limited in her rights, as the order appealed from might restrict the relief directed by the Court of Appeals. It also kept alive and enforcible an appraisal, filed after the action of the Court of Appeals, and a valuation influenced by the judgment now reversed.

The order of the Special Term, so far as appealed from, is reversed, with ten dollars costs and disbursements, and motion granted, with costs of this condemnation proceeding to appellant.

Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred.

Order in so far as appealed from reversed, with ten dollars costs and disbursements, and motion granted, with costs of this condemnation proceeding to appellant.