
    In the matter of the application of the Commissioners of Central Park, relative to the opening of certain new avenues, roads and public squares.
    [Riverside Park—Sutphen’s Appeal.]
    Prom an order made at a special term, confirming a report of commissioners of estimate and assessment for opening avenues, or public places, in the city of New Torlr, an appeal lies to the general term.
    Where the report of commissioners was erroneous in not allowing to property owners the value of streets which had been closed and discontinued, and it was referred back to them to correct their report, by an order in which the value was estimated by the court, and the commissioners were ordered to revise and correct their report by allowing certain amounts mentioned in the order; Held that such order was erroneous.
    An order to refer a report back for revision and correction is proper; and such order may be repeated, so long as the commissioners continue to err in the rules by which they are governed; but no authority is given to the court to make such estimate of damages.
    When commissioners make a report, which the court holds to be erroneous, and refers it back to them, the commissioners should correct their report on the principles laid down by the cburt; but the fixing of the valuation of the land is within the peculiar province of the commissioners.
    The commissioners should be governed by the law as laid down by the court; and it is not becoming in them to say, in their second report, that they believe they had adopted the proper rule in the first instance; that the act of making such report is not the result of their deliberation, or judgment, but that they make the same in obedience to the order of the court. Such report should not be received from them.
    APPEAL, by John S. Sutphen, from several orders, or judgments, made in this matter at special term, by the Hon. George G. Barnard, Justice, and dated respectively on the 11th day of July, 1871, on the 19th day of July, 1871, and on the 21st day of July, 1871, and from each of said three judgments, or orders severally, and from each, and every part of each, of said several judgments, or orders, by which order, dated the 11th day of July, 1871, the report of the commissioners herein was confirmed, with certain exceptions, and as to those exceptions sent back to be corrected, by awarding certain additional sums of money to persons designated by said justice; and by which order, dated the 19th day of July, 1871, the order of the 11th day of July, was amended j and by which order, dated the 21st day of July, 1871, the report of the commissioners, as amended under the orders made on the 11th and 19th days of July, was confirmed.
    The following opinion was delivered by Justice Barnard, at special term, on making the order of July 11, 1871.
    Geo. G. Barnard, J. The objections to the confirma-. tion of the report of the commissioners, with but two exceptions, hereafter noted, were principally directed to the awards made by the commissioners for the property taken in this -proceeding, though these objections were presented under various forms, involving questions as to the value of the riparian rights of owners of upland lots, or the reversionary interests of the adjoining proprietors in the streets laid down upon the map of 1807.
    The commissioners seem to have meted out to all these parties substantial justice, and to have considered these questions in making their final awards, leaving only the naked question as to the amount of the award. Upon this point the decision of the commissioners is final and conclusive, having all the effect of a verdict of a jury, and the court will not interfere in this respect. (Matter of Furman street, 17 Wend. 649. Matter of John and Cherry streets, 19 id. 659. Matter of Pearl street, Id. 651. Matter of William and Anthony streets, Id. 678. Matter of Bushwick avenue, 48 Barb. 9. Matter of South Seventh street, Id. 12.) It is only where some erroneous principle, or rule of valuation, has been adopted, or some 'mistaken view of the law governing the rights of the parties in interest, has controlled their action, that the court will send back the report for correction. (Matter of Central Park extension, 16 Abb. 56. Matter of Commissioners of Central Park, 51 Barb. 277.) It seems to me quite clear that such a mistake has been committed by the commissioners in their action in regard to the Bloomingdale road, and the land lying within the boundaries of the old' Twelfth avenue. In the latter case the commissioners have failed to make any awards, in some instances for a part, and in other instances for the whole of the property so situated, though it appears that awards were originally made for some of this identical land. ■ By the report it is conceded that the title to this strip of land is in the adjoining owners, and the enclosing of the same within the boundary lines of the adjoining lots, without increasing the awards, is substantially taking private property without making just compensation therefor, and therefore comes within the constitutional prohibition.
    In regal’d to Bloomingdale road, it was admitted on the argument that this is an old road, originally laid out without compensation, (Act of June 19th, 1703,) the title to which is presumptively in the owners of the adjoining land, with a right of way, only, in the public, and that on the discontinuanceoof the road, the same belongs to the adjoining owners, in fee simple absolute, (Gidney v. Earl, 12 Wend. 98. Hooker v. Utica &c. Turnp. R., Id. 377. Jackson v. Hathaway, 15 John. 441. Matter of Central Park extension, 16 Abb. 56. 3 Kent's Com. 557.)
    I think it cannot be seriously questioned, that under the act of 1867, this road was closed, and-that the fee of the same is now discharged from any easement in favor of the public. The map of the commissioners, closing the road, was filed in October, 1868, and the title to the same will not vest in the city until the confirmation of this report, during all of which time the adjoining owners have been seised of' the land lying within the road. Again, it ceases to be a public road when used for a park. (Matter of Central Park extension, 16 Abb. 56.) By these proceedings the fee of the road, and not a mere easement, is to be acquired. (Laws of 1867, ch. 567, act of 1813, &c.) The commissioners have, however, treated the matter as if the Owners had a mere reversionary interest in the road, instead of a fee, and have awarded only a nominal' amount to unknown owners, for the fee.
    I have gone over, with great care, the awards made for the property adjoining the Twelfth avenue and Bloomingdale road, and have calculated the amount which would be a just and equitable compensation for the portion of the Twelfth avenue and Bloomingdale road above referred to, and affected by these proceedings, adopting as a basis, the values fixed by the commissioners, and taking into consideration the increased awards made for the Bloomingdale lots, and the substantial awards made in some cases for a part of the old Twelfth avenue.
    The report will, therefore, in accordance with the views above expressed, be confirmed as to all other matters, and will be sent back to the same commissioners with instructions to revise the same, by increasing, the awards of the following persons, who are affected in these two respects, by the amounts set opposite their names :
    H. W. T. Mali, for his interest in the fee of old Twelfth avenue and Bloomingdale road, $11,025. "William R. Roberts, for his interest 'in the fee of old Twelfth avenue and Bloomingdale road, $19,950. James De Peyster, for his interest in the fee of old Twelfth avenue, $2700. Peter Cooper, for his interest in the fee of old Twelfth avenue, $5000. John H. Power, for his interest in the fee of old Twelfth avenue, $5000. George H. Peck, for his interest in the fee of old Twelfth avenue, $2500. Andrew Carrigan, for his interest in the fee of old Twelfth avenue and Bloomingdale road, $14,735. John H. Power and Lewis J. White, for their interest in the fee of old •Twelfth avenue and Bloomingdale road, $17,625. Unknown owner, for his interest in the fee of old Twelfth avenue, $9020. Eli White, for his' interest in the fee of old Twelfth avenue and Bloomingdale road, $12,050. The Post estate, for their interest in the fee of old Twelfth avenue and Bloomingdale road, $102.900. David F. Tie-" mann, for his interest in the fee of old Twelfth avenue, $4950. The estate of Kennaday, for their interest in the fee of Bloomingdale road, $6250. The Society. of the New York Hospital, for their interest in the fee of the Bloomingdale road, $5500.
    Ho re-assessment will be necessary in order to carry into effect these directions, as the commissioners have still ample power to assess upon the mayor, aldermen and commonalty, a sum sufficient to make, necessary corrections.
    The objections which might be raised to an entire review of the report, on account of delay, will be thus obviated, as the necessary alterations can be made immediately, and when these are made, substantial justice-will be done to all parties; the interests of the public will be protected, and the report will then be confirmed.
    Let the commissioners file their amended report next Tuesday, and an order be entered in conformity with these suggestions.
    The commissioners made a supplemental -report, dated July 20, 1871, as directed by the order of July 11th, in which they stated that in making this addition to their previous report, and thus increasing some of the awards for damages which they heretofore made, the commissioners desire hereby to record the fact that the act is not the result of their deliberation or judgment. They believe that they adopted the proper rule, and made full and adequate compensation to all parties, in and by their previous report; and their present action is not of their own volition, but simply the performance by them of what they regard, under the order of the court, as merely a clerical duty. They yield obedience to the order of the court, but deem this explanation proper, so that it may not be supposed that the increase of awards has.the sanction of their official oaths. It has not.”
    The report of the commissioners, as amended, was confirmed by the order dated July 21, 1871.
    
      Lewis L. Delafield, for the appellant.
    
      Richard O’Gorman, for the Mayor &c. of New York.
   Ingraham, P. J.

This is an appeal from an order of the . special term confirming the report of the commissioners of estimate and assessment. An objection is takpn that such a proceeding, when confirmed by a special term, is final, and that no appeal will lie to the general term. There have been such decisions made by former general terms. In the Bowery Extension case, (2 Abb. 368,) it was held that an appeal would not lie to the general term, although the judge admitted the language of the act of 1854 to be broad enough to cover the case of a special proceeding; because the statute made the order of confirmation final and conclusive. •

So in The Mayor v. Erben, (38 N. Y. 311,) the Court of Appeals held that the jurisdiction is confined to the Supreme Court, and the decision is not reviewable in the Court of Appeals. The judge adds that “ it is subject to an appeal to the special term of the Supreme Court, and no other judge, jury, court or referee has the slightest authority to examine into the matter.” It is proper here to remark, that when the act under which these proceedings were taken was passed, there was no special term of the Supreme Court, and that the act of 1813 (2 R. S. 411) directs the report to be made to the Supreme Court. Hothing in . it is said of the special term; nor is there anything in the statute which contemplates any other action, except that of a full court.

In the Matter of Canal and Walker streets, (12 N. Y. 411,) the Court of Appeals held that the appellant having heen heard before the special and general terms of the Supreme Court, were within the provisions of the act of 1854, in regard to special proceedings, and were entitled to a hearing in the Court of Appeals, were it not for the provision which made the decision of the Supreme Court final.

In the Matter of Seventy-sixth street, (12 Abl. 317,) the same decision was referred to, at special term. In that case, however, the right to appeal was only doubted because of the previous decision; and it was added that the decision in the Bowery case was conclusive on a special term, pntil the decision should be reviewed at general term. The act of 1854 was undoubtedly broad enough to include these proceedings, and this was conceded by Judge Hunt, in 12 N. Y. 411. But whatever view may have been taken of these proceedings, heretofore, the late decision of the Court of Appeals, in the Rensselaer and Saratoga R. R. Co. v. Davis, (43 N. Y. 137,) has a strong bearing upon the question of appealability of the order of confirmation.

The general railroad act (Laws of 1850, ch. 140) provided for taking lands for a railroad on similar proceedings, to be submitted to the Supreme Court, and after a second review in the court, makes the decision of the court final and conclusive between the parties. This act was passed before the act of 1854, providing for a review of special proceedings.

In 1 Kernan, 276, the Court of Appeals held that such proceedings were final in the Supreme Court, and that an appeal would not lie to the Court of Appeals. But in the case of the Rensselaer and Saratoga R. R. Co. v. Davis, that court has lately decided that such an appeal will lie. The court say the order appointing the commissioners is a special proceeding, from which an appeal to the general term lies, under chapter 270 of the laws of 1854, and it is a final order affecting a substantial right, made in a special proceeding. And I cannot but conclude that the Court of Appeals intend to hold such proceedings to be appealable under the act of 1854. But whether the same is or is not ' appealable to ther Court of Appeals, it seems to me that the Supreme Court, in general term, has the inherent right to review any proceedings in the court, where the power is placed generally in the Supreme Court, and is not by statute confined to .the special term. If reviewed by the general term, it is still the act of the Supreme Court; and until finally.disposed of, the proceeding is before the Supreme Court, and within the provision of the statutes which make the decision of the Supreme Court final.

I am of the opinion, therefore, that the cases holding ■ .that an .appeal does not. lie to the Supreme Court in general term, should be overruled, and the appeal sustained. Where an amount of property, exceeding five million of dollars, is taken from the owners on a valuation made by commissioners, it seems hard to deny them the right to review the legal questions which arise on the decision of a single justice, unless expressly forbidden.

There are various objections made to this report. It is unnecessary to notice any, except that made to the order referring it back to the commissioners to correct their report, in regard to the streets which had been closed. The first report was erroneous in not allowing the value of such streets. In the order referring it back, the value was estimated by the court, and the commissioners were ordered to revise and correct their report, by allowing the amounts mentioned in the order, and to file their corrected report at a day mentioned therein.

The order referring the report back for revision and correction, was proper, and such order might be repeated so long as the commissioners erred in the rules by which they were governed.

The power to estimate the loss and damage is given, by the act of 1813, to the commissioners, solely, and when the report is sent back for revisal and correction, it is for the commissioners to revise and correct it; and any new report may be referred back to them, as often as right and justice shall'require, .until a report shall be made which the court shall confirm.

Ho authority is given to the court to make such estimate of damages. If any such power existed in the court, there would be no need of referring it back to the commissioners, but the court could at once direct such allowances to be made. ■

Besides, the commissioners have not made any proper report on such order referring it back to them. In their report, they say the act is not the result of their deliberation or judgment; that they make the report in obedience to the order of the court. Such a report should not have been received from them.

When the case was* sent back to the commissioners, they should be governed by the law as laid down by the court; and it was not becoming in the commissioners to say they believed they had adopted the proper rule in the first instance, in opposition to the opinion expressed by the court.

The court held their first report erroneous, and they should have corrected it on the principles laid down by this court; but the fixing the valuation of the land was within the peculiar province of the commissioners. It may be doubted whether, in ordinary cases, the court should - interfere as to the actual valuation, unless it appears some legal principle has been violated.

For these reasons, we think the order appealed from must be set aside.

It is to be regretted that a new report cannot at once be made by the present commissioners; but as ‘two of them are away, and cannot act in the matter, it will be necessary to send the case to new commissioners. These will be named on settlement of the order.

[First Department, Generar Term, at New York,

November 7, 1871.

Cardozo, J.

I concur that the order is appealable. As bearing upon that question, the case of King v. The Mayor &c., (36 N. Y. 190,) may be added to the authorities referred to by Judge Ingraham.

I also agree that the court had not the power to direct the commissioners to estimate the damage at a sum which the judge fixed, instead of leaving it to the commissioners; and that for that reason the order should be reversed, and the matter take the course suggested by Judge Ingraham.

Order reversed.

Ingraham, P. J., and Cardozo Justice.]  