
    In the Matter of The Nassau Electric Railroad Company.
    
      Commissioners to determine whether a street railroad, shall be constructed — if their report is unfavorable the Appellate Division cannot authorize the construction of the road.
    
    The provisions of section 18 of article 3 of the Constitution of the State of New York of 1894, that the consent of the owners of one-half in value of the property-bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad shall first be obtained, or, in case the consent of such property owners cannot be obtained, that the Appellate Division in the department where it is proposed to construct a railroad may appoint commissioners to determine whether the railroad ought to be constructed or operated, and that their determination, confirmed by the court, may be taken in lieu of the consent of the property owners, do not give to the Appellate Division any power in the matter where the report of the commissioners is unfavorable to the construction of the road.
    It is only a favorable report, confirmed by the court, which can be taken in lieu of the consent of the property owners.
    Motion by the Nassau Electric Railroad Company and others to set aside the report of commissioners appointed by the General Term of the Supreme Court of the second judicial department to ■ determine whether the Nassau Electric Railroad Company ought to be constructed and operated through Union street in the city of Brooklyn.
    
      John J. Allen and Josiah T. Marean, for the motion.
    
      Jesse Johnson, opposed.
   Per Curiam :

The court has no power in this matter to set aside or confirm the •report of the commissioners or to review their determination. It was so decided by the General Term of this department in the Matter of the Nassau Cable Company (36 Hun, 272) in an opinion written by Justice Pratt, now a member of this court, and con-purred in by Justices Barnard and Dyicman, and this decision -was ■approved aud followed by the General Term of the first department in the Matter of East River Bridge Company (75 Hun, 119). The case of the Nassau Cable Company was precisely like the case now before us. The statute there under consideration authorized the General Term to appoint commissioners, who were •empowered, after a hearing of all parties interested, to determine ■whether the railroad ought to be constructed and operated' and who were directed to make a report thereon to the General Term, “ and their determination that such road ought to be constructed and operated, confirmed by said court, shall be taken in lieu of the consent of the property owners.” (Laws 1884, chap. 252, § 6.)

The commissioners reported adversely to the building of the road, whereupon the railroad company moved at the General Term to ■send back the report to the commissioners. In reference to this motion the court said: “ There seems to be no occasion for action by the court, except to confirm a favorable report or to refuse confirmation. It is made a condition precedent to a right to construct such railroad for the company, to either obtain the consent of the property owners or a favorable report of commissioners confirmed by the court. It is plain, therefore, that there is nothing before the court to be confirmed, as the report is not favorable.”

We concur in this view of the law. The language of the pres■ent Constitution isas follows: “No law shall authorize the cons traction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the Appellate Division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appmint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.” (Art. 3, § 18.)

While the expression their determination,” literally interpreted, would apply to any report of the commissioners, it is plain from the context that what the Constitution contemplated is a report favorable to the construction of the road. It is such a report only that can be taken in lieu of the consent of property owners, when confirmed by the court.

The learned counsel for the property owners favoring the construction of the road has referred us to the cases of The Kings County Elevated Railway Co. (82 N. Y. 95) and the Matter of the East River Bridge Co. (143 id. 249), claiming* that these cases .establish a different rule. In those cases the reports of the commissioners were favorable to the construction of the road. The commissioners’ reports were, however, under the provisions of the Constitution, inoperative until confirmed by the General Term, and it is in view of such requirement of the Constitution that it was held by the Court of Appeals that it was the duty of the General Term to review the whole case and pass upon the sufficiency of the facts to warrant the determination of the commissioners. That rule has no application to the case now before us, where the commissioners’ report is adverse to the construction of the road. In such a case the Appellate Division has no duty to perform in the matter, and -can neither confirm the report nor set it aside.

The motion must, therefore, be denied.

All concurred.

Motion to set aside the report of the commissioners denied.  