In re the Application of the City of New York, Acting by & Through the Commissioner of Docks, Relative to Acquiring Right & Title to & Possession of Certain Real Property, Lands, Lands under Water & Lands under Water Filled in, Not Now Owned by the City of New York, Situated Along the Westerly & Northerly Shores of Jamaica Bay

Carswell and Johnston, JJ. (dissenting).

The prevailing opinion, as we do, disregards the unusual procedure of the city on *454this motion, and the assertions of intrinsic or extrinsic fraud. With the limitation thus implicit, we pass to questions of law. (Matter of Baltimore Mail S. S. Co. v. Fawcett, 269 N. Y. 379, 382, 383.)

One question is the quantum of the award so far as it relates to land under water. The title and award for upland are not here involved.(1) The vacatur of a decree after the time to appeal therefrom has expired is not controlled by principles applicable to an appeal from a…