
    In the Matter of Alfred C. Chapin, as Mayor, etc., et al.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Eminent domain—Award—Commissioners.
    In proceedings to condemn land under chap. 583 of 1888, the report may be sent back to commissioners after confirmation, in order to apportion the award among the joint landowners.
    Proceeding by Alfred 0. Chapin, mayor bf the city of Brooklyn, and others, acting as a commission under and in pursuance of the provisions of Laws 1888, chap. 583 (Brooklyn City Charter), tit. 12, section 12, as amended by Laws 1891, chap. 245, to ascertain and appraise the amount of damages, if any, due on any property or interest by reason of the erection of the public hospitals in the town of Flatbush. After the report of the commissioners had been affirmed, an order was granted on the petition of Thomas Bulmer appointing a new commissioner in the place of one who_had died,_ and directing the commissioners to apportion an award made by them between joint owners of a certain parcel of land. The commissioners appeal.
    
      Albert G. McDonald, Corp. Counsel, for app’lts ; JohnH. Kemble, for resp’t.
   Per Curiam.

Order affirmed, with costs.

Dykman, J.

J. (dissenting).—The facts involved in this appeal are these : On the 22d day of May, 1891, three commissioners were appointed to ascertain and appraise the amount of damage done to any property or interest by reason of the erection of the public hospitals in the town of Flatbush. The commissioners qualified and entered upon the discharge of their duties, and on the22d day of May, 1893, made their report to the court, to which some exceptions were filed ; and on the 11th of November, 1893, such report was confirmed by the court. It appears from the petition in this proceeding that Thomas Bulmer is the owner of certain lands- and premises designated on the commissioners’ map as lots 17 and 18 in block 14. The commissioners of appraisal reported that, they had ascertained and appraised the amount of damage to such lots, taken together, at the sum of $600; and their award was made to the petitioner and owner A. D. Wood as joint owners of such lots. It further appears that some of the awards so made by the commissioners have been paid, and that George G. Herman,, one of such commissioners, is now dead. Upon that petition an order was made appointing Charles Hi Otis a commissioner in this proceeding, in the place of George G. Herman, deceased, and that Otis, in connection with the other two commissioners, met and apportioned the awards between the respective owners of lots Nos. 17’ and 18 in block 14. There are other provisions in the order, which do not require recitation here. From that order the mayor has appealed; and we find it to be erroneous.

The act under which the proceedings were instituted provided, among other things, that the report of the commissioners “be presented to the supreme court, at special term thereof on any day upon notice published in the corporation papers for ten days successively, and that said report be presented to said court for confirmation. The said court shall hear any objections to said report, or any part thereof, and may either confirm the same, or send it back to the commissioners of estimate, who shall thereupon reconsider the same, and again report the result to the said court, and the said report shall again be presented to said court for confirmation upon a similar notice as heretofore provided for. Said court shall again hear objections, and may confirm the same or send the same back as before provided. If the said report is confirmed, said confirmation shall be final and conclusive, but the same shall be sent back and reconsidered as often as said court may deem necessary.” Laws 1891, § 12, p. 461.

There is no authority or jurisdiction in the court other than such as is found in the statute itself, and the proceedings must be governed by the statute by which it was authorized. When the report of the commissioners was confirmed, such confirmation was final and conclusive. The liabilities of the city became fixed and determined definitely and finally. The statute authorized a special proceeding which should be complete and independent, subject to no judicial review. The following authorities justify this conclusion: Railroad Co. v. Marvin, 11 N. Y. 276; In re Commissioners of Central Park, 50 id. 497; In re Canal Street, 12 id. 406; King v. Mayor, 86 id. 182; Mayor, etc. v. Erben, 38 id. 305. Upon the confirmation of the report, the powers of the commissioners terminated, and their occupation was gone. They had discharged the functions of their office and exhausted their power. People v. Mott, 2 Hun, 672; 60 N. Y. 649. This rule should be applied with more rigor in this case because one of the commissioners died after he signed the report.

Again, no application by the petitioner for the appointment of a commissioner under this statute was authorized. Such application could only be made by the mayor and the two commissioners, who were clothed with that power by the statute. Moreover, the order confirming the report was a bar to the new proceeding. So long as that order remains, it is conclusive upon the rights of all the parties. The order should be reversed, with $10 costs and disbursements.  