
    In the Matter of the Petition of Hubert O. Thompson, Commissioner, etc., for Appraisal of Lands.
    
    
      (Court of Appeals,
    
    
      Filed April 29, 1890.)
    
    Appeal—Eminent domain—Code Civ. Pro., § 1337.
    An appeal upon a question of fact only arising upon conflicting evidence in proceedings before a commissioner appointed to appraise damages for land taken under chap. 490, Laws 1883, will not be considered in this court. There is no special provision made for such a case which exempts it from the provisions of Code Civ. Pro., § 1337.
    Appeal from order of the supreme court, general term, second department, affirming order confirming report of commissioners of appraisal.
    
      Charles B. Meyer, for app’lt; De Lancey Nieoll, for resp’t. .
    
      
       Affirming 47 Hun, 637, mem.
      
    
   Earl, J.

Proceedings were instituted under the act, chap. 490 of the Laws of 1883, to acquire title to the lands of the appellant for the purposes mentioned in the act Commissioners of appraisal were appointed, and the appellant presented to them his claim for damages on abcount of the land taken. After a hearing, of which no complaint is made, the commissioners awarded to him the sum of $783.20. Their report was confirmed at the special term, and the order of the special term was affirmed at the general term, and then the claimant appealed to this court, complaining that the award is too small.

It is provided in § 11 of the act that the commissioners of appraisal shall view the real estate taken and laid down on the maps, and shall hear the proofs and allegations of the claimant and of the city of New York. In making their appraisal; therefore, they are manifestly to act upon the information obtained, not only from the evidence produced before them, but from their view of the real estate. And thus their judgment is to be formed as to the amount of damages to be awarded to any claimant

The evidence in this case was conflicting, and it is not denied that evidence was given on behalf of the city which fully justified the award made. The claimant also had a hearing at the special term and still another at the general term, and now he asks this court to review the judgments of the commissioners and of the special aad general terms as to the amount of 'damages awarded to him upon the conflicting evidence; and this he does under § 21 of the act, which gives a claimant for damages the right of appeal from the determination of the special term to the general term, and from any determination there to this court. The act does not provide what questions shall be open for determination in this court There is no provision there for the determination of questions of fact upon conflicting evidence in this court, and therefore our jurisdiction in this case is governed by the general rules of law regulating appeals to this court, and we find it provided in § 1337 of the Code of Civil'Procedure that an appeal to the court of appeals from a final judgment, or from an order granting or refusing a new trial in an action, or from a final order affecting a substantial right, made either in a special proceeding, or in a summary application after judgment in an action, brings up for review in this court every question affecting a substantial right and not resting in discretion, which was determined by the general term of the court below, in rendering the judgment or making the order from which the appeal is taken, “ except that a question of fact, arising upon conflicting evidence cannot be determined upon such an appeal, unless where special provision for the determination thereof is made by law.”

Here, as we have seen, there is no such special provision, and therefore that section of the Code regulates the jurisdiction of this court in the present case.

Hence as no error of law in the proceedings is pointed out, the order of the general term should be affirmed, with costs.

All concur. .  