
    In the Matter of Widening Broadway in the City of New York.
    The act of the legislature, of February 27, 1871, (lam of 1871, eh. 57,) in relation to the widening and straightening of Broadway in the city of New York, &c., which authorizes this court, on good cause shown, to open the order of confirmation, and to cause the question of valuation to be re-examined, is not unconstitutional as impairing the obligation of contracts, or as depriving a person of property without due process of law.
    APPEAL by J. Watts Depeyster, from an order made at a special term, on the 3d of April, 1§71, setting aside the order of confirmation, in these proceedings, entered on the 28th of December, 1870, and appointing .new commissioners. The judge, at special term, found that there had been error, mistake, irregularity and illegal acts, in these proceedings; and that the assessments for benefits, and the awards for damages, had been unfair, unjust, inequitable and oppressive, as respected the city of ¡New York.
   By the Court, Learned, J.

There is no occasion for the general term to re-examine, at any length, the conclusions of the special term on this question of fact. The learned judge who held that term has found upon it, and the evidence appears to be ample to sustain his views. Indeed, the points raised here, by the appellant, seem to be only two. The first is that, as the court below found the assessments and awards unfair, &c., as to the city, and made no findings as to their claims, in respect to other persons, he should, at' the most, have set aside the proceedings only as to the city. But in vacating the order generally, and referring the matter to new commissioners, the court seems to have followed the direction of the statute, (Sess. Laws of 1871, ch. 57, § 4.) And now, assuming that it were within the discretion of the special term to vacate the order and confirmation in part, still there may have been, and we are inclined to think there was, good reason for vacating it altogether. We ought not to review the order in that respect.

The second point is undoubtedly the important one. The appellant insists that the act of the legislature, (Sess. Laws of 1871, ch. 57,) by authority of which this motion was -made and this order was granted, was unconstitutional; first, as impairing the obligation of contracts; second, as depriving a person of property without due process of law. In raising this question, it is important to . consider what the order was which was set aside. The act of 1869, chapter 890, authorizes the commissioners of the Central Park to lay out that part of Broadway between Thirty-fourth and Fifty-ninth streets, and to locate and establish the easterly and westerly lines thereof, so that the street be one hundred feet wide, and also to widen certain other parts of the street. They are to file certificates and maps defining the lines and naming the boundaries of this part of Broadway; and the filing of such certificates and maps is to be final and conclusive, as to the extent and boundaries of said improvements. After the filing of these certificates, the corporation counsel, in behalf of the city, is directed to acquire title to the land required, and for that purpose to apply to the Supreme Court, at special term, for the appointment of three commissioners of estimate and assessment. These commissioners are to make an assessment for the loss‘and damage, and of the benefit and advantage to the persons interested in the lands required for, and affected by, said proceedings. The act further provides, that all acts now in force, relative to opening, &c., streets and avenues, shall apply to all proceedings under this act, so far as the same are applicable.

There has been some disagreement on the question whether, in confirming reports of commissioners in such cases, the judge, or judges, acted as a court, or in a quasi judicial character. But the language of the constitution, (article 4, section 7,) requiring that the commissioners shall be appointed by a court of record, would seem to put the matter beyond dispute., and with this accords the case of Qanal and Walker streets, (12 N. Y. 406.) .1 am aware that it has been held, in this court, (Bowery extension, 12 How. 97,) that an appeal does not lie to the general term from an order of the special term, confirming the report of the commissioners. But if this were an open question here, I should think that the Court of Appeals had settled the doctrine otherwise. The case of Qanal and Walker streets was dismissed, on appeal to the Court of Appeals from an order of the general term, made on appeal from the special term, on the ground that the decision by the general term was, under the statute, final and t conclusive. This seems to me to be a recognition of the principle that the order should be appealed to the general term.

The language of Judge Davies, in King v. Mayor &c., (36 N. Y. 182,) is decisive on this point. In the case of the Rensselaer and Saratoga R. R. Qo. v. Davis, (43 N. Y. 137,) it was held that an appeal lay to the general term, and also to the Court of Appeals, from an order condemning lands under the railroad act. It is true, that the order appealed from was practically an order condemning the lands, and not simply an order for the appointment of commissioners; that is, the Court of Appeals held that the special term had jurisdiction.to consider whether the lands were necessary for the corporate purposes of the railroad ; while, in the case now under consideration, the analogous point seems to have been determined by the commissioners of the Central Park. While, .therefore, my own view is, that the order of confirmation was appealable, I prefer to examine the question on a different ground.

Supposing, then, that the order of confirmation, when made, was not appealable, can the court entertain a motion to vacate it for error, mistake, irregularity or illegality ? Assuming that the language of the former statute, as to opening streets, applies to proceedings under this act, the order .of the court is said to be “final and conclusive.” The meaning of these words can only be, that no appeal lies to a higher court. So they are construed in 12 N. T. 406. I do not see that these words give to the order of confirmation any greater validity or more sacred character than a judgment of the Supreme Court, which has been affirmed on appeal to the Court of Appeals, or in respect to which the time for appealing has expired. Every such judgment is final and conclusive upon all persons interested, whatsoever.

This order of confirmation, as I have already shown, is an order of the Supreme Court, not of any quasi judicial tribunal, possessing limited powers. It is a final order, made in a special proceeding. The court has appointed certain officers to ascertain and report upon certain disputed facts, viz. the value of the property taken and the benefit accruing. These officers have reported to the court, and the court has confirmed the report. In what way does this order of confirmation differ, as to its finality, from a judgment of the same court entered on the report of commissioners, for interests in partition ? And it is to be observed, that the commissioners were not to decide what land should be taken. That had already been decided by the Central Park commissioners. This proceeding might be compared to an action on account, quantum, valebat. These commissioners are to ascertain the value of property taken and of benefits conferred.

It is insisted, by the appellant, that the award of the commissioners, as compared with the prior proceedings, constituted a contract, and is within the protection of the constitution of the United States. But what is the contract, if there be one ? It is, on the part of the owner of the land, to sell, and on the part of the city, to buy, certain land at such price as the same is worth. This, as it appears to me, is the utmost effect that can be given to the proceeding, assuming that it is a contract.

There is no absolute price fixed between the parties as to this supposed contract, but the compensation is to be the actual value of the premises. To ascertain that value, commissioners are appointed. They make a report, which the court confirms. Is there any principle of law which prevents the court, on good cause shown—on proof, for instance, of error, injustice, and the like—from opening the question as to the actual value, and having it tried again before another and similar commission ? It is not necessary to inquire whether, without the act of 1871, the court could have done this; for the question is simply as to the constitutionality of that act. And looking upon the action of these commissioners as a proceeding to inquire what compensation the owners shall have for their property, I do not see any constitutional objection that should prevent the legislature from authorizing the court, (if it have not already the power,) on good cause shown, to open the question, and cause a re-examination of the question of value. And here, it seems to me, is the difference between the present case and that of The People v. Supervisors, (4 Barb. 64,) and other similar cases; in that the legislature, by a repeal of the act, attempted to annul what is called the contract between the owners of lands taken for public purposes, and the commissioners who had so taken it; and the act of the legislature was held unconstitutional. In the present ease, the legislature has passed no act of repeal; no act attempting to annul the so-called contract, by which the city purchases, and the owners sell, the land- taken. But, on the contrary, affirming the contract, the legislature only provides for another inquiry as to the value of the land. Eor do the legislature even enact that another inquiry shall take place. They only authorize the court, on proof that the former inquiry was illegal, unjust, &c., to have a new inquiry made as to the question of fact; namely, the question of value. The case of the Baltimore and Susquehanna Railroad Go. v. Heshit, (10 How. 395,) is closely analogous. In that case, an act of the legislature of Maryland directed a court to set aside an inquisition condemning lands, and to cause an inquisition de novo to be taken. The former inquisition had been ratified and confirmed by the court, and the act of the legislature was peremptory. Yet it was held to be constitutional. A distinction may be made between that case and the present, in this respect: In that case, the title to the land passed on payment or tender of the valuation. In the present, according to the language of the act of 1813, the title passes on the final confirmation of the report. Still, I do not think this difference in the language of the acts is very substantial, when we consider the provision of the United States constitution, forbidding the taking of private property for public use, without just compensation.,

In the view of the case which I have thus taken, the act of the legislature authorizing this Court, on good cause shown, to open the order of confirmation, and to cause the question of valuation to be re-examined, was constitutional. I have not referred to many authorities, because they are so fully and ably set forth in the opinion of the learned judge whose order is appealed from; but I have simply stated the principle which I supposed governed the case. The order should be affirmed.

[First Department, General Term, at New York,

January 1, 1872.

Ingraham, P. J., and Geo. G. Barnard and Learned, Justices.]  