Misc.] Supreme Court, June, 1899. of that municipality, and such limitation being in derogation of common-law rights, and, in effect, to confer property rights upon the individual citizen at the expense of the public, if expressed in the charter should be strictly construed. This so-called Kingsboro avenue has been a country road and public highway for a hundred years, and the dwelling-house of plaintiff, on her land abutting on the east side of this highway, has been there for fifty years. During all this time the owners have possessed no such property right in the highway which would entitle them to compensation had the cutting down in front of the premises been made as now complained of. In 1873, by special charter, chapter 505 of that year, the "village of Gloversville" was incorporated, and its easterly bounds are then declared to be "along the Kingsborough road." This is conceded to mean that the easterly limits were the center of this road, now called Kingsboro avenue. The plaintiff's land, all lying on the easterly side of this road, was none of it included within the limits of the "village of Gloversville," and she takes nothing through the provisions of that charter. For the same reason the fact that the center line of this road was the village line - the road as such never came as a whole within the village jurisdiction for the purpose of establishing a grade. It had no such authority over it as would permit the village to "establish" a grade. As to all the streets in the village, it had the power to establish a grade either by formal resolution or by such official recognition and user as shown in Folmsbee v. City of Amsterdam, 142 N. Y. 118; but, for lack of jurisdiction this power could not be exercised over the Kingsborough road; and never was attempted to be exercised. The fact that the village made connections with this road at its original grade, through various village streets, must be taken as a necessity and not as an official establishment of a grade. They could not do otherwise than they did. In 1890, the city of Gloversville was incorporated by special charter, chapter 55 of the Laws of that year, and the Kingsboro road and plaintiff's premises were included within the boundaries of the city. This, I think, must be taken as the first statutory provision giving new rights to the plaintiff touching the Kingsboro road. For the first time this road came, through this charter, under municipal control, and to this we must look for the limitation, if any, which gives to plaintiff new property rights in the high Supreme Court, June, 1899. [Vol. 27. "When the grade way. The language of this limitation is this: of any street, or any part thereof, has been established and a record made thereof, and such street or part thereof graded accordingly, the grade of such street or part thereof shall not be changed and graded according to the changed grade, except upon petition of a majority of the lineal feet fronting on the street, or the parts thereof, to be graded, nor unless compensation be made to the owners of the property injured by the regrading." It will be observed that this language materially differs from the language used in the charter of the city of Amsterdam, under consideration in the Folmsbee case. Here the grade must not only be “established" but a "record thereof " must be made before the limitation is applicable. No one doubts the power of the Legislature in the premises; and it does not seem to me that an intelligent construction of this language can leave a doubt as to its meaning. It is unreasonable to urge that a strict rendering of this language might work a hardship upon abutting owners. The act takes nothing away from them; all that they had previously parted with they received full compensation for. If abutting owners desired to make further improvements, which might be affected by a new grade of the street, they could compel the "establishment" of a grade and a "record thereof," and save to the taxpayers of the municipality the expense of compensating them for damages sustained by the abutting owner in building or improving regardless of an established and recorded grade. The charter imposes this duty upon the municipality, and the courts can compel its discharge. So far as the plaintiff in this case is concerned, there is no hardship apparent resulting from the change from township jurisdiction to municipal. She has made no improvements since the change. She simply here asserts a claim to new property rights in the street, and points out this clause in the charter as the sole grounds of her claim. As to her, surely the court cannot be moved to torture the plain rendering of this clause to work out a compensation in her behalf, to which she is not in law or equity entitled. In June, 1890, some three months after the city charter was passed taking in Kingsboro avenue, the common council passed a resolution requiring abutting owners to construct sidewalks along various streets, among them Kingsboro avenue is mentioned, but these sidewalks were required to be constructed "in accordancewith the grades now established or to be established for said streets Misc.] Supreme Court, June, 1899. and avenues respectively," but no notice to owners was given, nor did the city cause the walks to be built. I do not think this can be regarded as a recognition by the city of a grade "established " on Kingsboro avenue. On the 19th of February, 1894, the common council took action as follows: "Alderman Gross, of the committee on streets, presented a profile of Kingsboro avenue, prepared by the committee, and moved that the grade for Kingsboro avenue from Green avenue to First avenue be adopted as shown in the profile. Motion carried." This includes the portion of the avenue passing the plaintiff's premises, and appears to be the first official recognition and record of a grade upon this avenue, and is a sufficient "establishment" of such grade to give notice to abutting owners. The profile clearly indicates the line of the street grade - both the surface line of the then road and the line of the established grade. This grade line does not appear to have been subsequently changed; and to this grade line indicated, in this profile, the cutting in front of plaintiff's premises now complained of, seems to have been done. No grading, however, on this avenue was done prior to the passage by the common council on April 13, 1897, of the following resolutions: "Resolved, That the grade on Kingsboro avenue from First avenue to E. Fulton street, as shown on a profile prepared by the city, be adopted." "Resolved, That the street lines and curb lines on Kingsboro avenue, between Green avenue and E. Fulton street, as shown on map made by the city engineer and filed with the city clerk, be adopted." These resolutions did not change the grade adopted on February 19, 1894; and shortly afterwards the street was graded to conform to such profile, and this grading is the grievance of which plaintiff complains. It cannot be reasonably claimed where the right to change the surface of a road exists in the public, and it has been transferred from the town authorities to municipal by act of the legislature, that the right cannot be exercised after the municipality acquires jurisdiction, whatever hardship may ensue to the abutting owner. There appears to have been no unreasonable delay here in exercising the right. No one, least of all the plaintiff, was misled to their injury. Presumably the grade was established as soon as the abutting owners requested or the needs of the locality demanded. Supreme Court, June, 1899. [Vol. 27. I see nothing in this case warranting a finding that the grade had been established by user, and nothing which ought to work an estoppel upon the municipality; and nothing in the case, which in law or equity can entitle plaintiff to another compensation. The work was done by lawful authority, and no property right of plaintiff was invaded. The action should be dismissed, with costs, and judgment is so directed. Action dismissed, with costs. WILLIAM BENTLEY, Plaintiff, v. ELISHA W. GARDNer et al, Defendants. (Supreme Court, Monroe Special Term, June, 1899.) Judgment-When final, cannot be supplemented by an ex parte order stating the substance of the decision. A judgment, entered upon a decision made in an action brought to foreclose an annuitant's lien on real estate, which disposes of every issue, appoints a referee to compute and sell and provides for a judg ment for any deficiency, is final in its nature, and therefore the entry by the plaintiff's attorney, without application to the court, of an order setting forth in substance what was contained in the deci sion is unnecessary and unauthorized, and the order will be vacated on the defendant's motion. MOTION to vacate and set aside an order entered herein by plaintiff's attorney on the ground that its entry was not authorized by the court. Henry M. Field, for plaintiff. Elisha W. Gardner, for defendant, in person. DAVY, J. This is a motion to vacate and set aside an order entered herein by plaintiff's attorney in the Ontario county clerk's office, on the 29th day of May, 1898, on the ground that its entry was not authorized by the court. Misc.] Supreme Court, June, 1899. The action was brought to foreclose a lien in favor of the plaintiff on the premises described in the complaint, which lien was created by a provision in the deed from the plaintiff to certain of the defendants, who therein agreed to pay to the plaintiff an annuity of $200 a year. The learned judge before whom the case was tried filed his decision stating concisely the grounds upon which the issues had been decided, and directed judgment to be entered thereon. He appointed a referee to compute the amount due on the principal sums stated in the decision, and named the same referee to sell the premises; he also directed that the decree should provide that a judgment might be entered for any deficiency which might arise upon the sale. After the decision of the court was handed down, the learned counsel for the plaintiff prepared and entered an order setting forth in substance what was contained in the decision, which order was entered without application to the court. The important question, therefore, which arises upon this motion, is whether the order should be vacated and set aside on the ground of irregularity. The learned counsel for the plaintiff contends that the order is an interlocutory judgment, and was necessary for the guidance of the referee and the clerk in the performance of their duties. The rule is that where a decree disposes of all the issues raised by the pleadings, and leaves nothing for the further consideration of the court, it is to be regarded as final. The decision of the court in the present case not only settled the issues and rights of the parties, but it gave all the directions necessary to a final disposition of the case. It decided all that was necessary to be determined judicially. No question was reserved requiring further judicial action of the court. It gave the referee authority to make the computation and to sell the premises. It authorized the plaintiff to do every act necessary to perfect the judgment of foreclosure and sale, and awarded costs against such of the defendants as were owners of the equity of redemption, and authorized judgment for any deficiency which might arise upon the sale of the premises. * * * It was held in Mills v. Hoag, 7 Paige, 18, that "The usual decree in mortgage cases, for the sale of property and the distribution of the fund among the parties and finally disposing of the question of costs, is a final decree, and is constantly enrolled as such; although the master's report of the sale and distribution may be excepted to if it is erroneous, and it may require a subsequent order of the court to dispose of the questions |