
    Matter of the application of the Staten Island Railroad to acquire land of Hamilton.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    Railroads—Commission to acquire land—When report will not be
    SET ASIDE BECAUSE OP THEIR RECEIVING MORE THAN STATUTORY PEES.
    Where commissioners of appraisal were appointed who did not require any stipulation, nor was there any agreement as to fees, hut after their services were completed and their report filed, presented a bill to the railroad company for more than is allowed by statute, which was paid by the company.- Held, that their report could not be set aside for the reason that they received more than the statutory fees, where there is no complaint against them or their award, and no abuses of any kind are claimed.
    
      Stewart & Boardman, for appellant, Hamilton.
    
      Work & McNamee, for respondent, Railroad Company.
   Dyeman, J.

This is an appeal from an order setting aside a report of commissioners of appraisal because they received compensation for their services beyond the allowance prescribed by the statute. It does not appear that they required any stipulation in advance respecting their fees or that there was any agreement on the subject at any time. But after their services were completed and their report made and filed, they made a bill which was paid by the company, the only source from which they could derive their fees. Their position was not similar to that of a referee to hear and determine an action whose fees are to be paid in the first instance (to him) by the successful party. The compensation must come from the railroad company without recourse to the property owner and without reference to the amount of their award. It cannot be assumed that any advantage enures to the company from that fact, but if it has any influential operation it cannot be attributed as a fault either to the commissioners or the company. The property owner has neither duty nor interest respecting the fees ot the commissioners, and so long as he secures a just result by the award they make he cannot be heard to complain. In this case there is no complaint against the. commissioners or their award, and no abuses of any kind are even suggested. The commissioners performed their 'duties, and then after all was over and done, made a charge for their services such as they deemed just and proper, and the company paid the bill instead of precipitating a controversy. The facts seem to furnish no adequate reason for setting aside a just report. Besides all this, the landowner himself states that he was present at a meeting of the commissioners when his counsel requested a postponement, and when the counsel for the company stated as one of the grounds of his opposition that the commission was costing the company §100 every day it was in session. This was a plain statement that the commissioners would receive over thirty dollars a day, and yet no objection was made, and certainly if any was contemplated the appropriate time to make it was then. It is quite true that courts have and will guard against improper influence, and will require the avoidance of the very appearance of evil; but no rule yet established makes it necessary or proper for the court to set aside a report of commissioners simply because they have charged and received a fair and adequate compensation for the time they have devoted to the discharge of their duties and the services they have performed.

The order should be reversed, with ten dollars costs and disbursements, and the motion to set aside the report should be denied, with ten dollars costs, and the motion to confirm the report of the commissioners should be granted, without costs.

Barnard, P. J., concurs; Cullen, J., not sitting.  