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 judgment, and those principles may not be invoked on a motion to set aside such a decree on the grounds here considered. On this belated motion for a new trial, as hereinbefore limited, the quantum of an award may not be reviewed on this record. We, therefore, deem irrelevant the discussion in the prevailing opinion of the quantum of the award. That discussion does not purport to be a complete recital of figures. It makes no mention of pertinent bona fide sales and gives no force to other pertinent factors set out in the record which would account for or materially narrow the gap between alleged cost of the property and the amount of the award therefor. It is not a full perspective of the situation before the trial justice.
The cited item of newly-discovered evidence was not presented under circumstances of required diligence. It, with impeaching effect, is merely cumulative of the similar and more extreme evidence presented on the trial by the city to establish a low basis of value. A new trial is not permissible merely to adduce cumulative evidence which would not affect the result. The trier of the fact herein, to whom this matter never has been submitted and who had this other extreme evidence before him, would presumably so conclude. The reason for the rule, which should be given vigor here, is that there must be finality to litigation. This proceeding concluded with the entry of a final decree on December 27, 1932, nearly three and a half years ago, and on that date it had been pending for six years. In the meantime, rights have vested in the appealing banks, which have made substantial advances in justifiable reliance upon that finality. This narrows inquiry to a question of law relating to title to land under water.
(2) When this proceeding was tried, whether or not claimant’s title should be questioned was a matter for determination by the city, when proof of title was made in due course under section 1000 of the Greater New York Charter. The city, acting through a group of lawyers of integrity and ability, specialists in this field, concluded that the claimants on such proof had established their title and, therefore, the only proper subject of contest was the *455quantum of the award. The city knew, inter alia, the early dicta which indicated a possibility that it had title to the land under water, and it also knew the later dicta and actual decisions that the city did not have title. So informed, the city had a right to conclude that it did not have title to the land under water and that the claimants had established title thereto. The city had a right to recognize that if the doctrine of res adjudicata did not bind it, the doctrine of stare decisis did — this because of the judgment in People of State of New York v. Williams, Adams, and City of New York, Kings County Supreme Court (not reported), entered January 11, 1917 (an action instituted by the State to which the city was a party), holding that the 1897 State grant to Williams and Adams established title in the claimants; the judgment in Atlantic, Gulf & Pacific Company v. City of New York, Kings County Special Term of the Supreme Court for Trials (not reported), entered December 30, 1920, relating to land under water immediately adjoining the parcel here involved; the judgment in Bergen Beach Land Corp. v. City of N. Y. (113 Misc. 491); the views expressed in Matter of City of New York (Jamaica Bay) (256 N. Y. 382), per Crane, J.; the obtaining by the city of grants from the State in 1913 of such similar land under water as had not been previously alienated to others (e. g., to Williams and Adams in 1897); all of which were in accord with Rockaway Park Imp. Co. v. City of New York, No. 2 (140 App. Div. 160).
To prevail on this motion it was an indispensable prerequisite that the city show affirmatively that it had title to the land under water involved in this award. It has not done so and makes no claim that it has done so.
If we. disregard this essential to the city’s prevailing as a matter of law under the circumstances, because afterborn wisdom or uninformed judgment deems that the question of title to the land under water should have been made the subject of another adjudication in this proceeding, then the only vacatur justifiable on this record would be a limited form of vacatur of the judgment as to whom the award was made: That is, in the exercise of plenary power, imposing a condition that the claimant consent to the award’s being made to an “ unknown owner ” and further consenting to proceed forthwith to a trial of the question of title in a separate proceeding to obtain the award thus made to an unknown owner, or proceed in the present proceeding to a trial of the question of title. Nothing in section 1000 of the Greater New York Charter obstructs either procedure. This would determine, despite decisions to the contrary, whether the present belated intimation that the city might possibly establish that it and not the claimants had title to the land *456under water, has substance or is a synthetic apparition. Apportionment of the award presents no difficulty. . The court could do what has been done in proceedings to obtain awards to unknown owners — determine how much thereof belongs to one or more particular claimants where it be found that one claimant is entitled to one portion of such an award and another claimant entitled to another portion. Division may readily be made on expert opinion evidence based on the total value already decreed in accordance with orderly practice, where there was a real and vigorous contest relating to units of value.
However, since a majority vote is not available to sustain such a proposed intermediate disposition based on expediency, although a violation of established rules governing such motions but representing a minimum infraction thereof, to the end that another opportunity be given to have this question of title made the subject of a trial, we return to the view that the city has failed to establish the indispensable prerequisite to prevailing on this motion that it has title to the land under water which is part of this award. On the contrary, it appears that the claimant has title; hence the order should be reversed and the motion denied.
Order, as resettled, granting motion to vacate the decree and directing a new trial, modified by eliminating all the provisions thereof except the preliminary recitals and except the direction for a new trial, which is to be had pursuant to the provisions of section 1000 of the Greater New York Charter. As so modified, the order is affirmed, with costs to abide the event.