4 Lans. 467 | N.Y. Sup. Ct. | 1871
Lead Opinion
This is an appeal from an order of the . special term confirming the report of the commissioners of estimate and assessment. An objection is takpn that such a proceeding, when confirmed by a special term, is final, and that no appeal will lie to the general term. There have been such decisions made by former general terms. In the Bowery Extension case, (2 Abb. 368,) it was held that an appeal would not lie to the general term, although the judge admitted the language of the act of 1854 to be broad enough to cover the case of a special proceeding; because the statute made the order of confirmation final and conclusive. •
So in The Mayor v. Erben, (38 N. Y. 311,) the Court of Appeals held that the jurisdiction is confined to the Supreme Court, and the decision is not reviewable in the Court of Appeals. The judge adds that “ it is subject to an appeal to the special term of the Supreme Court, and no other judge, jury, court or referee has the slightest authority to examine into the matter.” It is proper here to remark, that when the act under which these proceedings were taken was passed, there was no special term of the Supreme Court, and that the act of 1813 (2 R. S. 411) directs the report to be made to the Supreme Court. Hothing in . it is said of the special term; nor is there anything in the statute which contemplates any other action, except that of a full court.
In the Matter of Canal and Walker streets, (12 N. Y. 411,)
In the Matter of Seventy-sixth street, (12 Abl. 317,) the same decision was referred to, at special term. In that case, however, the right to appeal was only doubted because of the previous decision; and it was added that the decision in the Bowery case was conclusive on a special term, pntil the decision should be reviewed at general term. The act of 1854 was undoubtedly broad enough to include these proceedings, and this was conceded by Judge Hunt, in 12 N. Y. 411. But whatever view may have been taken of these proceedings, heretofore, the late decision of the Court of Appeals, in the Rensselaer and Saratoga R. R. Co. v. Davis, (43 N. Y. 137,) has a strong bearing upon the question of appealability of the order of confirmation.
The general railroad act (Laws of 1850, ch. 140) provided for taking lands for a railroad on similar proceedings, to be submitted to the Supreme Court, and after a second review in the court, makes the decision of the court final and conclusive between the parties. This act was passed before the act of 1854, providing for a review of special proceedings.
In 1 Kernan, 276, the Court of Appeals held that such proceedings were final in the Supreme Court, and that an appeal would not lie to the Court of Appeals. But in the case of the Rensselaer and Saratoga R. R. Co. v. Davis, that court has lately decided that such an appeal will lie. The court say the order appointing the commissioners is a special proceeding, from which an appeal to the general term lies, under chapter 270 of the laws of 1854, and it is a final order affecting a substantial right, made in a special
I am of the opinion, therefore, that the cases holding ■ .that an .appeal does not. lie to the Supreme Court in general term, should be overruled, and the appeal sustained. Where an amount of property, exceeding five million of dollars, is taken from the owners on a valuation made by commissioners, it seems hard to deny them the right to review the legal questions which arise on the decision of a single justice, unless expressly forbidden.
There are various objections made to this report. It is unnecessary to notice any, except that made to the order referring it back to the commissioners to correct their report, in regard to the streets which had been closed. The first report was erroneous in not allowing the value of such streets. In the order referring it back, the value was estimated by the court, and the commissioners were ordered to revise and correct their report, by allowing the amounts mentioned in the order, and to file their corrected report at a day mentioned therein.
The order referring the report back for revision and correction, was proper, and such order might be repeated so long as the commissioners erred in the rules by which they were governed.
The power to estimate the loss and damage is given, by the act of 1813, to the commissioners, solely, and when
Ho authority is given to the court to make such estimate of damages. If any such power existed in the court, there would be no need of referring it back to the commissioners, but the court could at once direct such allowances to be made. ■
Besides, the commissioners have not made any proper report on such order referring it back to them. In their report, they say the act is not the result of their deliberation or judgment; that they make the report in obedience to the order of the court. Such a report should not have been received from them.
When the case was* sent back to the commissioners, they should be governed by the law as laid down by the court; and it was not becoming in the commissioners to say they believed they had adopted the proper rule in the first instance, in opposition to the opinion expressed by the court.
The court held their first report erroneous, and they should have corrected it on the principles laid down by this court; but the fixing the valuation of the land was within the peculiar province of the commissioners. It may be doubted whether, in ordinary cases, the court should - interfere as to the actual valuation, unless it appears some legal principle has been violated.
For these reasons, we think the order appealed from must be set aside.
It is to be regretted that a new report cannot at once be made by the present commissioners; but as ‘two of them are away, and cannot act in the matter, it will be necessary to send the case to new commissioners. These will be named on settlement of the order.
Concurrence Opinion
I concur that the order is appealable. As bearing upon that question, the case of King v. The Mayor &c., (36 N. Y. 190,) may be added to the authorities referred to by Judge Ingraham.
I also agree that the court had not the power to direct the commissioners to estimate the damage at a sum which the judge fixed, instead of leaving it to the commissioners; and that for that reason the order should be reversed, and the matter take the course suggested by Judge Ingraham.
Order reversed.
Ingraham, P. J., and Cardozo Justice.]
