¶1Opinion on motion to amend remittitur. A motion is made on the part of the petitioner that the remittitur in this case be amended so as to allow the petitioner a rehearing in the court below, or to renew his application on further proofs. This motion is founded upon affidavits to the effect that the defect of proof upon which this court based its judgment of affirmance can be supplied upon a new hearing, and that the point upon which the case was decided in this court was not taken in the court below.
¶2These considerations might properly and probably would induce the court below to reopen the case and allow the proofs to be supplied, but it is beyond the province of this court to afford such relief. So far as it can, however, it is disposed, under the circumstances of the case, so to frame its judgment that it shall not be an obstacle to the petitioner obtaining in the proper form the relief which he seeks.
¶3The case was decided in the court below, on the ground that the land which is claimed by the petitioner and through which the sewer was constructed had been dedicated to the public as a street. When the case came to this court the point was taken by the counsel for the corporation that the proofs before the Special Term failed to show that any part of the sewer was on the land claimed by the petitioner, or that the owner of the land, where it was located, had not consented to its being placed there. This point, on examination, was found to be well taken. The question whether the land had been dedicated as a street was not, therefore, reached, and was not passed upon by this court. If the defect in the proof should be supplied and it should be shown that the sewer was constructed upon the half of the street claimed by the petitioner, and that the owner of the other *316 half did not consent, then it will be material to inquire whether the land embraced in the street had been dedicated to the public. It is proper that the petitioner should have an opportunity to put his case in such shape that this question can be decided.
¶4We, therefore, direct that the remittitur be amended so as to show that the question of dedication was not passed upon, and to state that the affirmance of the order is without prejudice to an application by the appellant to the court below to reopen the case and allow the parties a rehearing on further proofs, or, if the petitioner desires, to present a new petition that the affirmance is without prejudice to such new application.
¶5All concur.
¶6Ordered accordingly.