132 N.Y.S. 960 | N.Y. App. Div. | 1911
It is elementary that a report of commissioners in condemnation proceedings must be confirmed unless there is shown to have been misconduct or palpable mistake on the part of the commissioners which resulted in harm to a party interested in the proceeding. Purely technical objections, not going to the merits, and omissions in no way harmful to a party, do not authorize the Special Term to ref use confirmation of the commissioners’ report. (Matter of New York Central & Hudson River Railroad Company, 64 N. Y. 60.) All of the objections made by the respondents to the confirmation of the report of the commissioners, except the objection that such commissioners had not taken a proper oath of office, were properly overruled by the learned justice at Special Term for the reasons stated in his opinion, which is reported in Matter of Grade Crossing Comrs. (69 Misc. Rep. 23) and the reasons for overruling such objections need not be further amplified. None of such objections in any manner affected the merits of the controversy, and all were known or upon the slightest investigation might have been known to the respondents while the hearing was in progress and no objection was made by either of them until the report was made. It would seem intolerable that a party .to such a proceeding may sit by, take a part in the litigation upon the merits, with full knowledge of the alleged irregularities and wait until a report is made or décision rendered and then, in case such report or decision is adverse to him, for the first time to insist that such irregularities render such report or decision of no binding force or effect. It cannot be pretended that either of . such irregularities in any manner affected the award which was made to the respondents. The learned court below, however, thought that the failure of the commissioners to take the oath of office prescribed by the Grade Crossing Act was jurisdictional and that because of such failure the report could not be confirmed. The oath taken was the oath prescribed by the
We conclude that none of the objections made to the confirmation of the report of the' commissioners is tenable.
It follows that the order should be reversed, and the motion to confirm the report granted, with costs.
All concurred, except Robsor, J., who dissented.
Order reversed, with costs, and motion to confirm report of commissioners granted. * ’