
    SUPREME COURT.
    In the Matter of the Nassau Cable Company in the city of Brooklyn.
    
      Railroads — Laws of 1884, chapter 252—Commissioners to determine as to whether a street railroad ought to be constructed and operated—Mo necessity to confirm an adverse decision.
    
    Where commissioners were appointed under chapter 252 of the Laws of 1884, by the general term of the supreme court on the application of a railroad company to determine on the use of certain streets, and they reported against the application and in favor of the property owners : Meld, that as the report was adverse to the company there was no necessity for its confirmation by the court.
    It is made a condition precedent to a right to construct such railroad for the company to either obtain the consent of the property owners or a favorable report of the commissioners, confirmed by the court. There is no occasion for action by the court, except to confirm a favorable report or to refuse confirmation.
    The court has power to determine whether the commissioners have performed their duties under the statute, and should it appear that they had refused to hear the 'parties or take any evidence, or the report was such as to plainly show fraud or irregularity, the report may be sent back. But an erroneous ruling in excluding testimony, or, in admitting immaterial, or even incompetent or hearsay evidence is not sufficient to warrant sending a case back for future hearing.
    
      Second Department, General Term, May, 1885.
    The general term appointed three commissioners on the application of the company to determine on the use of several streets in the city of Brooklyn for a cable street railroad. The commissioners reported against the application and in favor of the property owners, who defended. The company appealed from the commissioners’ report.
    
      James A. Nelson and Charles P. Shaw, for company, appellants.
    
      B. D. Silliman, T. C. Cronin, Mr. Moore, D. Benedict, S. D. Morris, Mr. Fisher, Mr. Arnold, Mr. Lowell, Mr. 
      
      Coggswell, Mr. Shiller, Mr. Chittenden and Mr. Osborne, for property owners, respondents.
   Pratt, J.

This proceeding was instituted under chapter 252 of Laws of 1884. Section 5 of that act provides that a general term of the supreme court shall appoint commissioners, who, under section 4 of said act, shall determine whether such road ought to be constructed.

Section 6 thus provides: The commissioners shall determine, after such public hearing of all parties interested, whether such railroad ought to be constructed and operated, and shall make a report thereon, together with the evidence taken, to said general term, and their determination that such road ought to be constructed and operated, confirmed by said court, shall be taken in lieu of the consent of the property owners before mentioned.”

There seems to be no occasion for action by the court, except to confirm a favorable report or to refuse confirmation. It is made a condition precedent to a right to construct such railroad for the company to either obtain the consent of the property owners or a favorable report of commissioners confirmed by the court. It is plain, therefore, there is nothing before the court to be confirmed as the report is not favorable.

The next question relates to the power and propriety of sending the report back for future hearing or the appointment of other commissioners to rehear the matter; and this question depends in a large measure upon the nature and duties of the commission appointed by the court. If these commissioners constitute a judicial tribunal, bound to proceed according to technical rules in hearing the parties, then palpable errors in ruling upon questions of evidence or refusing to regard the weight of evidence would be just cause for setting aside the report and sending the matter back to the same or other commissioners. But if the statute was intended to provide for a tribunal like a town meeting or a legislative committee, not bound to regard rules of evidence strictly, then the objections here raised will not avail to petitioners. I think the latter view is the correct one. The commissioners can take into consideration all matters material to determine whether the road ought to be constructed as proposed. They may view the matter, and -their eyes and judgment as men may testify and furnish grounds upon which to base their determination. But they must give all interested an opportunity to be heard, as provided in the statute, and conduct the proceedings in a regular and orderly manner.

Inasmuch as their report requires confirmation to give it validity, there is an implied power granted to the court to determine whether the commissioners have performed their duties under the statute, in case it should appear that commissioners had refused to hear the parties or take any evidence, or the report was such as to plainly show fraud or irregularity, to hold that it could not be sent back would deprive the petitioner of a statutory right. An erroneous ruling in excluding testimony, or in admitting immaterial or even incompetent or hearsay evidence, is not sufficient to warrant sending a case back for future hearing. All that the commissioners passed upon was the precise application as made, and all that need be said upon the subject is that they have failed to make a favorable report, and the same is not in any manner impeached for fraud or irregularity. The commission was required to pass upon the petition as a whole, and they have done so. Whether it was competent-for the commission to decide upon each street separately we are not called upon now to decide, all that need be determined is that it has not done so; and that having failed in so doing is not error calling for any action by this court. We do not deem it necessary to advert to the assignment of various errors committed by the commissioners, or to discuss the conclusions of fact which it is claimed ought to have been found. All we decide is that in our view there is nothing before the court calling for any action as the report is not favorable, and no such fraud or irregularity is shown as to warrant sending the report back.

Motion denied, without costs to either party.  