
    Matter of the petition of the New York Elevated Railway Company, In re Story.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 15th, 1886.)
    
    1. Commissioners to appraise damages to land—Appeal from second
    APPRAISAL NOT ALLOWED—MOTION TO SET ASIDE.
    Although an appeal from the second appraisal by commissioners (of damages resulting to land) is expressly prohibited by statute, the right to make a motion to set aside the report is recognized; but something more must be apparent than such errors of law or fact as are sufficient, where an appeal is allowable, to result in a reversal and new hearing. There must be such an irregularity, fraud or mistake in the proceedings of the commissioners to warrant a proceeding by motion as would authorize the court under its established practice to set aside a judgment or verdict in an action on motion.
    3. Same—When judgment set aside on motion.
    A judgment would not be set aside on motion because the court on the trial committed an error in excluding or admitting testimony to which one of the parties objected, nor for any ordinary ruling in the progress of a trial to which an objecting party must reserve his right of review by an exception. It must appear on the contrary that some of the material proceedings of the court, or referee, or jury were fraudulent, illegal, or irregular.
    Motion to set aside report of commissioners.
    
      Wm. B. Hornblomer, for petitioners ; John E. Parsons, for Mr. Story.
   Per Curiam.

The report now sought to be set aside is -one made by new commissioners on a second hearing and appraisal after the reversal on appeal of the first. An appeal from such second appraisal is expressly prohibited by statute; but it does not follow that the petitioner is wholly remediless, because the right of appeal is taken away. The right to make a motion to set aside the report is distinctly, recognized and announced in several cases cited by the learned counsel for the petitioner. Matter of N. Y, C. and H. R. R. Co., 64 N. Y., 60; Matter of Prospect Park and C. I. R., 24 Hun, 199; aff’d, 85 N. Y., 489.

The same practice exists in analogous assessments, notwithstanding a statute may declare them final and conclusive. Matter of application of Mayor of N. Y., 49 N. Y., 150; Baldwin v. Calkins, 10 Wend., 167.

But we think that to authorize the court to review, on motion, a second report from which the statute has expressly inhibited an appeal, something more must be. apparent than such' errors of law or fact as are reviewable on appeal, and sufficient where an appeal is allowable, to result in a reversal and new hearing. If this be not so the denial, by statute, of the right to appeal is a simple brutum f ulmén, and of no practical value to any one; for the remedy by motion could, in that case, be invoked for every erroneous ruling or finding in the progress of the hearing and determination from which substantial prejudice to the moving party might be inferred. There must be such an irregularity, fraud or mistake in the proceedings of the commissioners to warrant a proceeding, by motion, as would authorize the court under its established practice to set aside a judgment or verdict in an action or motion. But there is no practice which authorizes the setting aside of a judgment on motion because the court on the trial committed an error in excluding or admitting testimony to which one of the parties objected, nor for any ordinary ruling in the progress of a trial to which an objecting party must reserve Ms right of review by an exception. It must appear, on the contrary that .some of the material proceedings of the court, or referee, or jury, were fraudulent, illegal or irregular, in contradistinction to those possible or probable errors winch are made in the progress of a trial by the decisions of a court acting in entire good faith, but under mistaken views of law or fact, and which are correctable by the ordinary process of appeal. In this case we fail to see any such fraud, irregularity, illegality, or mistake as would justify us had they occurred in the course of a trial of an action M court, in setting aside a verdict on motion; though it is quite possible, if an appeal would lie we might feel bound to set aside the report because of a mistaken ruling as to admissibility of evidence, or the propriety of tho form of a question relating to damages allowed to be put by the commissioners against the objection of the petitioner. The question objected to was: “Q. In your opinion, does the .structure of the railroad, and the passing, of the trams upon it, as it is constructed and operated, dimmish the value of the property limitmg your consideration to the effect, if any, produced upon light, air and access, and excluding from your consideration, the effect, if any, produced by noise, the vibration of the buildmg, annoyances by smoke, ashes, dust, steam or cinders, or by the unsightly appearance of the structure itself ?”

The counsel of the petioner objected “to so much of the question as asks as to the effect of the passing trains upon the light in Mr. Story’s premises.”

The commissioners overruled the objection, and the counsel excepted. It is obvious that the counsel for Story had carefully sifted the elements of this question out of the disjecta membra of the various opinions heretofore enun-i dated by the courts in the several phases which Mr. Story’s case has assumed.

. It is not necessary to say what our opinion might be if we were called upon to review the correctness of the ruling, admitting this question, upon a bill of exceptions or case on appeal from a trial at circuit, for it does not follow that if that ruling was erroneous it was such a mistake, fraud or irregularity as wmuld require the court to set aside a judgment on motion founded upon affidavits. Such a practice in such a case we think would not be entertained.. It is urged by counsel for petitioner that this ruling introduced an element of damage for the consideration of the commissioners not allowable under the authorities, and that, therefore, the commissioners may have to some extent allowed damages upon an erroneous principle. If this position be true, upon which, however, we do not intend to pass, the ruling would, on appeal, be a fatal one, because it would not appear but that the commissioners might have allowed some portion of the damages for the effect of passing trains upon the light. But in this case that possibility is not sufficient to justify setting aside the report. It is not manifest in the case that any such damages were in fact allowed. That they were is mere matter of inference from the allowance of the question and the answer. But the inference may be a wholly mistaken one. The witnesses who answered this question estimated the damages from $17,500 to $25,000, or more. The commissioners allowed damages to the amount of $7,000. Now the inference is quite as strong that in getting at the sum of $7,000 they eliminated the injuries to light by the passing trains, as that they included them, and it cannot correctly be said that it appears beyond question that the objectionable damages were included. But upon such a motion as this that fact must clearly and affirmatively appear. Inferences, probabilities and possibilities are not a sufficient basis for this mode of proceeding.

The report of the commissioners states that they did “as- • certain and appraise the compensation to be made by the petitioner herein to the said Rufus Story for so much of the said privilege, easements or other interest in Front street belonging to the said Rufus Story as is or has been taken by the petitioner at the sum of $7,000.”

This would seem to exclude the idea that anything except 'what “is or has been taken by the petitioner” was included in the $7,000 awarded; and although it is highly probable that the petitioner has been by the result made to pay something for the effect of the momentary “flashes of darkness” which its passing trains cast into Mr. Story’s windows, yet that has not been made to appear in a form entitling the petitioner to relief by this motion.

The motion must be denied, with ten dollars costs and disbursements.  