
    In the Matter of the Application of the Lake Shore and Michigan Southern Railway Company for the Appointment of Commissioners to Ascertain the Compensation to Be Made to the Owners of and Parties Interested in Certain Lands Situate in the Town of Hanover, County of Chautauqua, and State of New York, and Proposed to Be Taken by the Lake Shore and Michigan Southern Railway Company and Claimed to Be Owned by Ida Dickinson and Others.
    Fourth Department,
    October 12, 1910.
    Eminent domain — practice — appeal from second report of commissioners where prior report was not set aside upon merits.
    Where a first report made bycommissioners appointed in condemnation proceedings was set aside on appeal not upon the merits but solely upon the ground that one of the commissioners was an improper .person to act, and new commissioners were appointed, an appeal lies from the order confirming the report 'of the new commissioners.
    Such report is not made final and conclusive by section 3377 of the Code of Civil ■ Procedure, as a second determination is only conclusive under said section where the previous decision was set aside upon the merits.
    Motion to dismiss an appeal from a final order confirming the report of commissioners appointed to condemn the lands of- the respondents.
    E. C. Randall, for the motion.
    
      Hoyt & Spratt, opposed.
   Spring, J.:

In 1906 commissioners were appointed to appraise the lands of the defendants in condemnation proceedings. The report of the commissioners was filed and the award made confirmed by the Special Term, the plaintiff opposing.

Upon appeal to this court the order of confirmation was reversed and the report set aside solely upon the ground that one of the commissioners was an “improper person” to act in that capacity. (128 App. Div. 909.) Hew commissioners were appointed and another award made, which has been confirmed by the Special Term, and the plaintiff has again appealed to this court. The defendants moved to dismiss the appeal on the ground that the second report of the commissioners was final and conclusive. (Code Civ. Proc. § 3377; People ex rel. Schuylerville. & U. H. R. R. Co. v. Betts, 55 N. Y. 600; Matter of Prospect Park & C. I. R. R. Co., 85 id. 489.)

We think the statute referred to is not applicable to the present appeal. Upon the first appeal the merits were not considered, but the report was set aside for the reason that one of the commissioners was not qualified to act. The award was, therefore, a nullity, and the report confirmed by the final order now sought to be reviewed became the original report and appraisal. (Matter of Daly, 189 N. Y. 34; Matter of N. Y. C. & H. R. R. R. Co., 64 id. 60.)

In the case first cited the first report was set aside because an erroneous measure of damages was adopted founded on improper evidence. New commissioners were appointed, a new appraisal made, which was affirmed, and an appeal taken from the final order, which was dismissed by the Appellate Division on the ground that the order was final and conclusive. (Matter of Daly [Lahe Gleneida], 116 App. Div. 798.) The order of the Appellate Division was reversed by the Court of Appeals: The court used this language (at p. 39): “ The first report having been set aside by the Special Term for the reasons stated, must be regarded as no appraisal and no report, and the new appraisal must, in legal contemplation, be regarded as the original appraisal. In no other way can the statute be complied with, for it distinctly gives to either party the right to a review of the determination of the Appellate Division by the Court of Appeals. This right the parties aggrieved have been deprived of if the first appraisal and report which has been set aside is to be treated as an original appraisal and the new appraisal made thereafter is to be regarded as the second appraisal and report, which becomes final and conclusive.”

In each of these cases cited the report first made was set aside by the Special Term and its order was affirmed on appeal, and it is the contention of the counsel for this motion that these authorities are not pertinent to a case where two reports have been confirmed by the Special Term. It was necessary for the plaintiff to appeal from the first order sustaining the report in order to establish the invalidity of the award, and when it was held to be a nullity and the order reversed for that reason, the report became ineffectual for any purpose. The order confirmed a void report and was not a final order within the meaning of the statute.

The second determination of the commissioners, if approved by the court, is conclusive where it and the previous decision have been upon the merits. Each appraisal must be made by a tribunal composed of competent, qualified commissioners in order to constitute a legal award. .If there was a disqualified commissioner, or misconduct on the part of any of them impugning the integrity of the award, the court, on review, may order another appraisal, and may continue to do so until a fair determination on the merits has been obtained.

If a brother of the defendants had participated in the determination, or if one of the commissioners had been corruptly induced to sign the report, the decision would be a nullity, and consequently it would not be a decision within the meaning of the Code provision referred to.

The motion to dismiss the appeal should be denied, with ten dollars costs.

All concurred.

Motion to dismiss appeal denied, with ten dollars costs.  