
    (116 App. Div. 798)
    In re DALY et al.
    (Supreme Court, Appellate Division, Second Department.
    January 11, 1907.)
    Eminent Domain—Proceedings—Appeal.
    Laws 1893, p. 325, c. 189, § 16, provides for an appeal to the Supreme Court from the appraisal and report of commissioners appointed in proceedings for the condemnation of property for waterworks purposes, and provides that on the hearing of the appeal the court may direct a new appraisal, and that in case of a new appraisal the second report shall be “final and conclusive” on all parties or persons interested. Held, that no appeal lies from an order confirming a report on a second appraisal.
    Application and petition by Michael T. Daly and others for the condemnation of Lake Gleneida for a part of the water supply of the city of New York. From an order confirming the report of commissioners, certain claimants appeal. On motion to -dismiss the appeal. Motion granted.
    Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ.
    Isaac N. Mills, for the motion.
    I. J. Beaudrias, Artemas H. Holmes, and Lewis H. Freedman, opposed.
   WOODWARD, J.

In the year 1893 the city of New York, proceeding under the provisions of chapter 189, p. 317, of the Laws of 1893, petitioned for the condemnation of Lake Gleneida, in the town of Carmel, Putnam county, to be used as a part of the water supply of the said city. An order of the Supreme Court at Special Term was made in the year above named, condemning various parcels of real estate, including the property involved in this appeal, known as “Parcels 63 and 64,” and appointing commissioners of appraisal under the provisions of the' said act. The commissioners reported in regard to said parcels in September, 1899. In the following year the report was brought on for hearing and confirmation at a Special Term of this court held in Dutchess county, and confirmation was refused; the order of the court setting the report aside and appointing new commissioners. An appeal to the Appellate Division (72 App. Div. 394, 76 N. Y. Supp. 28) resulted in an affirmance of the order, and-on motion an appeal to the Court of Appeals was dismissed, on the ground that the order was not final. 173 N. Y. 640, 66 N. E. 1106. The new commissioners, under the order of 1900, with substitutions due to deaths, proceeded in due form to consider the questions involved, and brought in a report which was duly confirmed, and certain-of the claimants have appealed from the order of confirmation. The Cole claimants move to dismiss the appeal, on the ground that, this being a second appraisal, no appeal lies to this court.

The only practical question submitted upon this appeal is in relation to the construction of the statute. Section 16, c. 189, p. 325, of the Laws of 1893 provides for the confirmation of the report of commissioners of appraisal, and it likewise provides that:

“Such report, when so confirmed, shall, except in the case of an appeal, as provided in section 22 of this act, be final and conclusive as well upon the said mayor, aldermen and commonalty of the city of New York as upon owners and all persons interested in or entitled to an estate, right, title, interest, privilege. term or easement in said real estate, and also upon all other persons whomsoever.”

Section 22 provides:

“Within twenty days after the notice of the confirmation of the report of the commissioners, * * * either party may, by appeal or notice in writing to the other party, appeal to the supreme court from the appraisal and report of the commissioners. Such appeal shall be heard on due notice thereof being given, according to the rules and practice of said court, either at a Special or General Term thereof, as the appellant may desire. On the hearing of slicli appeal the court may direct a new appraisal and determination of any question passed upon by the same or new commissioners in its discretion, but from any determination of the Special Term an appeal may be taken to the General Term, and from any determination of the General Term either party, if agreed, may take an appeal which shall bo heard and determined by the Court of Appeals. In the case of a new appraisal the second, report shall he final and conclusive on all parties and persons interested.”

The evident scheme of the statute is to permit the original commissioners to fix upon the amount of compensation to be awarded those who have interests involved in the real estate to be taken, detailed provisions being made to permit each person so interested to bring his claim before the commissioners, and then to permit each person so interested to bring his claim before the commissioners, and then to permit of appeal upon any question or questions which may be involved to the court of last resort. The case having thus been passed upon on all of the questions which arose on the Original appraisal, it is provided that if a second appraisal is made it shall be “final and conclusive”; that is, all of the parties having been before the commissioners and having had a full opportunity to be heard and to have any questions of law fully considered upon appeal, the Legislature has provided that the court may in its discretion direct a new appraisal and determination of any question passed upon, either by the same commissioners or by new ones,-and the second report, which will presumptively follow-the rules laid down by the court upon appeal, is to be final and conclusive upon all of the parties. When the whole scope of the statute is considered, this does not appear to be a harsh rule. It provides all of the opportunity which may be fairly expected to review any question of law which is involved in the proceeding, and in effect merely makes conclusive the judgment of the commissioners upon the specific questions submitted to them for determination under rules which the court will, presumptively at least, lay down upon the original appeals.

In People ex rel. S. & U. H. R. R. Co. v. Betts, 55 N. Y. 600, the statute involved had this identical provision, and it was sought to review the second report of commissioners under a common-law writ of certiorari; but the court refused all relief, and dismissed the appeal on the ground that, the statute having provided that the second report should be final and conclusive, there was no authority for reviewing such action, either by direct appeal or through a writ of certiorari. The court say:

“And now the appellants say the writ should lie in this case, for there is no remedy by appeal from a second appraisal and report. True, because the statute says that it shall be final and conclusive upon all parties interested; not because an appeal is not the appropriate remedy. An appeal is the method provided by law for remedying erroneous action of commissioners of appraisal. And when the statute says that the second appraisal shall be final and conclusive, it is not that it means only to refuse that mode of remedy, but that it means to deny any remedy.”

See Matter of D. & H. C. Co., 69 N. Y. 309; Matter of Fitch, 147 N. Y. 334, 336, 41 N. E. 699.

It is clearly within the legislative power to deny an appeal. No one seems to question this, and, the language of the statute providing that in “the case of a new appraisal the second report shall be final and conclusive,” it is difficult to understand how the appellant have any standing upon this appeal.

The motion to dismiss the appeal should be granted, with costs. _ All concur.  