
    In the Matter of the Application of the PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY to acquire lands of MICHAEL SHEEHY. SAME to acquire lands of JOHN C. VAN SICKLER and JACOBUS RYDER.
    
      Gommissionei's to appraise damages caused to tlie owner of land, l>y reason of its being taken by a railroad — when a second report will be held conclusive.
    Where the report of commissioners appointed to appraise the damages resulting to the owners of land, by reason of its being taken for railroad purposes, has been set aside by the General Term, on the ground that they erred in only awarding nominal damages to the owners, and a new set of commissioners has been appointed who have made their report, by which nominal damages only are awarded to the owners, the court will not in the absence of fraud, corruption, misconduct or misapprehension, set aside the last report and appoint a new set of commissioners.
    Appeal from the report of commissioners appointed to appraise the damages to be awarded to the owners of land to be taken for railroad purposes, and from an order made at Special Term confirming the same. ■ .
    
      Benjamm G. Hitchings, for the appellants, Sheehy, Ryder and Van Sickler.
    
      John H. Bergen, for the railroad company, respondent.
   DyKMAN, J.:

So far as we can do so, we have settled tbe law of tbis and other similar cases in tbis court. In May, 1878, tbis court beld that tbe rule of damages in tbe matter was tbe same as that laid down in tbe matter of the Utica Railroad Company (56 Barb., 457), wbicb was tbe difference between wbat tbe place as a whole would bring in tbe market without the railroad, and wbat tbe residue will bring after the railroad is constructed, and that everything wbicb will depreciate tbe value of that residue is to be taken into account. Again, in September, 1878, on a motion for a reargument, we held that the land owners are entitled to the actual value of land taken, and the depreciation of tbe residue of tbe lot from which it is taken, and also to any depreciation caused by tbe use to wbicb tbe land taken is to be appropriated. We set aside tbe first report of commissioners to' ascertain the compensation to be paid to tbe land owners, because we concluded they bad adopted an improper measure of. dajnages. We at tbe same time appointed new commissioners who have likewise awarded nominal damages, and now we have their report before us on appeal also. We think tbis report must give us pause. It is not sufficient for its nullification that we are dissatisfied with the'finding, nor that we would not reach tbe same conclusion. Tbe facts are not for us nor for our determination. Tbe law constitutes tbe commissioners tbe tribunal for their decision. If there has been carelessness, irregularity or misconduct on tbe part of tbe commissioners, or if they have adopted improper rules of law, their report may be set aside.

Tbe only complaint here is that tbe measure of damages adopted by tbe commissioners was improper. Tbis position cannot be assumed and it has no evidence for its support. On the contrary, it must be assumed that tbe commissioners were made aware of tbe decision of this court on that question, and that such decision was a law unto them, and that under such rule they have found, after examination and investigation, as a fact, that there results no damage to the land owners. Over tbis question we have no control. We cannot make a determination of it ourselves. We can only appoint commissioners for that purpose. Tbe legislative provision that the second report of commissioners shall be final and conclusive on all the parties interested, though very emphatic, does not deprive tbe parties of the right of review nor prohibit the exercise of the supreme superintendence possessed by this court over all inferior tribunals and bodies. Such power may be exerted in the correction of errors or misconduct which would set aside the report of a referee or the verdict of a jury. (Matter of New York Central, etc., R. R., 64 N. Y., 60.) Yet this expression of the legislative will, is entitled to respect and certainly means something, and where two sets of commissioners have reached the same result, in the absence of fraud, corruption, misconduct or misapprehension, there is not sufficient reason for setting aside the last report and 'appointing a new set of commissioners. There must be an end in this kind of litigation as well as in actions of law. This court has endeavored to secure; compensation to the land owners on this avenue under the belief that justice so required. But, as already stated, we cannot determine the facts relating to the amount and quantity of such compensation. We organized the body designated by law for the decision of that question, and we have an honest report. If it is a mistaken one it must stand and be final, as would the verdict of a jury on a disputed question of fact.

The order appealed from must be affirmed, but without costs.

The same result follows in the case of John C. Van Sickler and Jacobus Ryder.

Gilbert, J., concurred; BarNard, P. J., not sitting.

Orders and reports of commissioners affirmed, without costo»  