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UNITED STATES v. 25.4 ACRES

January 18, 1949

UNITED STATES
v.
25.4 ACRES OF LAND, ETC., BOROUGH OF BROOKLYN, KINGS COUNTY, NEW YORK, et al.



The opinion of the court was delivered by: BYERS

By this motion, the City of New York seeks an order 'modifying, revising, amending and/or correcting paragraph numbered '4" of an order dated April 21, 1947, D.C., 71 F.Supp. 255, which provides that the United States have judgment against the City in the sum of $ 131,987.95, with interest at 6% per annum from December 22, 1941.

The amendments sought are: (a) To reduce the rate of interest to 4%. (b) To start the interest running as at the date of the said order, April 21, 1947, instead of December 22, 1941.

 These changes are urged in spite of the fact that the said order was appealed to the then Circuit Court of Appeals for the Second Circuit, by Notice of Appeal dated May 9, 1947, from each and every part of said order, as well as from the whole thereof. A cross-appeal was taken by the Government with respect only to an award which was made to the City to cover the cost of relocating an electric power line.

 It appears that the provisions of the said order comprehended in this motion were not asserted to be erroneous in either the written or the oral argument presented to the reviewing Court in connection with said appeal, which was heard on March 9, 1948.

 A decision was rendered on May 19, 1948, United States v. City of New York, 2 Cir., 168 F.2d 387, 391, the final sentence of the opinion reading: 'The judgment is therefore affirmed.'

 An appropriate mandate was issued by the Clerk of the (then) Circuit Court of Appeals, on June 4, 1948, and filed in the office of the Clerk of this Court on the following day. On June 14, 1948, an order on said mandate was duly signed and filed, and copy thereof was duly served on the City on June 15, 1948.

 Notice of this motion bears date of November 26, 1948.

 The foregoing recital will suffice to indicate that this Court is without power to grant the motion: Home Indemnity Co. of New York v. O'Brien, 6 Cir., 112 F.2d 387, cited with approval in Morris et al. v. Securities and Exchange Commission, 2 Cir., 116 F.2d 896,at page 898. See also United States v. Certified Securities, Inc., 9 Cir., 151 F.2d 188; Borough of Munhall v. United States, D.C., 71 F.Supp. 241.

 The matter of the award of interest having of necessity been presented to the reviewing Court, and equally comprehended in its decision, and the mandate having been filed and the judgment on appeal having been made the judgment of this Court, there is no further power which the Court could exert, if it would.

 While the Home Indemnity case dealt with a matter falling under Rule 60(a) (b) of the Rules of Civil Procedure, 28 U.S.C.A., which in terms, Rule 81(a) (7), apply, as to condemnation proceedings, only to appeals, the bearing of that decision is the more compelling since, as to such proceedings, there is no rule cited to indicate that reconsideration of any subject may be entertained once the term has expired in which final order or judgment has been made or entered.

 This aspect of the matter is not affected by paragraph 6 of the order of April 21, 1947, which provides:

 '6. That this proceeding be held open for the entry of such further orders, decrees, and judgments as may be necessary to carry out and effectuate the objects and purposes sought to be accomplished in this proceeding, and the distribution of all awards made herein.'

 That is a precautionary paragraph, the plain purpose of which is to state that final disposition of issues affecting any particular damage parcel or claim is not to be construed as terminating the entire condemnation proceeding, which remains open for the disposition of issues affecting any other damage parcel or claim.

 It is mere surplusage, designed to embody an undisputed and evident truth. Manifestly it cannot be tortured into a construction that the trial court thereby intended to reserve to itself the power to reconsider and change a final determination of issues which had been adjudicated; or that an appellate court would be willing to review an order or judgment which the lower court had thus ...


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