
    The People of the State of New York ex rel. William T. Comstock, Respondent, v. George A. Morrison, Jr., Defendant, Impleaded with the Manhattan Railway Company, Appellant.
    
      Eminent domain — when a peremptory mandamus will not issue to compel a commissioner to sign a report signed by his two associates where a motion for a rehearing has been made.
    
    The three commissioners appointed in a condemnation proceeding, having apparently agreed upon the amounts of the awards, one of them wrote a letter to a party interested in the proceeding in which he said "the awards of the Commissioners in the above-entitled condemnation proceedings are as follows ”, naming them. The following day the plaintiff in the proceeding served notice upon the commissioners of an application for a rehearing and a reargument and for a reduction in the awards mentioned in the letter.
    . Later on the same day and on the next day two of the commissioners signed a formal report and presented it to the third commissioner, who declined to sign it lest it should interfere with the plaintiff’s right to the rehe'aring. The application for the reargument was heard before two of-the commissioners (the ' third having sailed for Europe), one of whom voted to deny the motion and the other, who was the one who declined to sign the report, voted to grant it. The latter commissioner then wrote upon the report, which had been previously signed by the other commissioners, a refusal to sign the same, placing such refusal upon the ground, among others, that the plaintiff had a substantial. right to a rehearing and a reargument-and that the signing of the report by him would end the jurisdiction -of the commissioners over the report.
    ' Held, that a peremptory writ of mandamus should not be issued requiring the refractory commissioner to sign the report.
    Appeal by the defendant, the Manhattan Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of August, 1900, directing the issue of a per-' emptory writ of mandamus requiring the defendant George ■ A. Morrison, Jr., to forthwith sign as commissioner the majority report of commissioners in a certain condemnation proceeding instituted by the Manhattan Railway Company as plaintiff against the above-named relator and others as defendants, to acquire title to certain easements or property rights appurtenant to certain premises located in the Bowery in the city of New York, alleged to have been taken or impaired by the maintenance and operation of the elevated railroad of the said Manhattan Railway Company in front of the said premises.
    
      
      William H. Godden, for the appellant.
    
      James C. Bushby, for the respondent.
   Patterson, J.:

This is an appeal from an order directing the issuance of a per•emptory writ of mandamus to compel George A. Morrison, Jr., one -of three commissioners in a condemnation proceeding, to sign a report of such commissioners. The order was made on the appli-cation of the relator Comstock, who was. the owner of certain premises situate on the Bowery in the city of New York, and in front of which the elevated railway of the Manhattan Railway Company is built and is in operation. That company sought to condemn certain -easements appurtenant to the relator’s property, and after proceedings duly had in accordance witli law, three commissioners, namely, William Mitchell, Edwin J. Curry and George A. Morrison, Jr., •were appointed by- the Supreme Court to fix the value of the easements to be taken. After several hearings were had before the ■ commissioners, at which evidence was taken, they seem to have substantially agreed upon the amounts that should be awarded to the relator, and Commissioner Morrison wrote a letter to one of the parties interested, in which he stated that “the awards of the Commissioners in the above entitled condemnation proceedings are as follows ” naming them. That letter appears to have been sent on the 26th day of June, 1900. On the next' day the attorney for- the Manhattan Railway Company served notice upon the commissioners -of .an application for a rehearing and reargument, and for a reduction of- the awards of fee and rental damage referred to in the letter ■ of Commissioner Morrison, dated June 26, 1900, and that further .application would be made for the reopening of the trial and rehearing and a reconsideration of the awards. Meantime, Commissioner Curry had announced his intention of sailing for Europe, on the •twenty-seventh of June, whereupon one of the attorneys for the property owners prepared a report for the commissioners and obtained •the signature of Mr. Curry thereto late on the evening of June -.twenty-sixth, and on the morning of June twenty-seventh that- report -was presented to Commissioner Mitchell, who signed the same and -delivered it to Mr. Bushby, the - attorney referred to. Upon the report, being presented to Mr. Morrison, he declined to sign it, lest his doing so might interfere with the right of the Manhattan Railway Company to a rehearing. Mr. Curry having gone to Europe, the two other commissioners met in July, 1900, and counsel were-heard upon the application for a reargument, and after that hearing-Mr. Mitchell voted 'to deny the motion for a rehearing and Mr. Morrison voted to grant the same. The official notification of the-action of the commissioners on the motion for a reargument was-made in writing by George A. Morrison, Jr., chairman, to Mr.. Bushby on the 25th of July, 1900. On- the same day Mr. Morrison, wrote upon the report which had been signed in June by Mr.. Mitchell and Mr. Curry the following: I decline to sign the above-report for the reasons hereto annexed,” and then he added a memorandum in which he placed his refusal to sign the report upon the-opinion that the railroad company had a substantial right tó a. rehearing and reargument before the report was signed and filed,, and that such reargument and rehearing should be before the full board of three commissioners, and that commissioners and referees-have jurisdiction at any and all times before the actual signing and filing of their reports to hear and determine any applications made-in regard thereto, and to make any corrections or changes in said reports which to them may seem proper; that the signing of the-report by him, in view of the tie vote of the -commissioners and the-filing of the same by the defendants’ attorneys, would end the jurisdiction of the commission and effectually destroy a substantial right of the railroad company to be heard.

'In view of what is above stated, it is apparent that the order-directing the peremptory mandamus to issue was made upon a-misapprehension of the facts' of the case and of the legal relation, of the commissioners to the proceeding-in which they were appointed.. There had been no official or effective irrevocable decision' made by the commissioners in June, 1900. It is true that one of them had, announced certain sums as awards to be made to the relator, but. that announcement was in no way conclusive and did not constitute-a decision beyond' the power of recall. It is required by the statute-that a decision shall be made in a report by the commissioners which is their ultimate act, and until that act is performed the proceeding-is still open before them. The general rule is well stated in Lewis-on Eminent Domain (§ 423): Commissioners, as a general rule,. have complete authority over their report until it has been filed or otherwise placed beyond their control. Although they have once resolved to report adversely to an improvement, they may after-wards report in favor of it.”

The report of the commissioners had not passed beyond their control when it was signed only by two of them and then delivered to one of the attorneys for the property owners. Inasmuch as the . notification given was that the awards were unanimously made, it was contemplated that the report should be signed by three commissioners, and, therefore, the case does not present the feature of there being two assenting commissioners and one dissenting, which would authorize the delivery and filing of the report signed by the two concurring commissioners. The simple question on this branch of the case is whether the judicial duties of the commissioners had ceased before the signing of a report. It is not to be disputed that the functions of the commissioners in condemnation proceedings are judicial; that is a proposition which no one would dispute. These judicial functions include the making and signing of a formal report by the commissioners and its passing by delivery or filing beyond their control. The learned judge who granted the order appealed from seems to have proceeded upon the theory that the signing of the report was only a ministerial act very much like the signing of a, postea in a common-law judgment. On the contrary, it is to be likened rather to the report of a referee on the trial of an action or the decision of a judge made in the short form now authorized by the Code of Civil.Procedure. •

The effect of a mandamus in this case would be to compel this commissioner to decide a particular case before him in a particular way, and that is beyond the power of the court to do.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for a mandamus denied, with ten dollars costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  