
    The People of the State of New York ex rel. August Belmont and Walter Luttgen, Relators, v. William D. Leonard, Chairman, and Others, Commissioners, Appointed under and by Virtue of the Provisions of Chapter 537 of the Laws of 1893, and Continuing to Act under the Amendments to Said Act, Being Chapter 567 of the Laws of 1894, and Other Acts, and The City of New York, Respondents.
    
      Commissioners to determine claims for the change of grade of a street — they cannot mcate their action in dismissing a claim—remedy of the claimant—effect of the commissioners filing an order of dismissal with the comptroller of New York city.
    
    Commissioners appointed under chapter 537 of the Laws of 1893 and the acts amendatory thereof to determine claims for damages alleged to have been caused by the changing of the grade of certain streets in the city of New York, who dismiss certain claims presented to them, thereupon become functus officio as to such claims and have no power, even though their action in dismissing the claims was erroneous, to vacate the dismissal.
    The remedy of the claimants in such a case is either to review the determination of the commissioners or to move the court to reopen the matter and send the case back to them.
    The fact that the commissioners filed with the comptroller of New York city an order dismissing the claims in question, although the statute did not require them to do so, is immaterial.
    Certiorari issued out of the Supreme Court and attested on the 13th day of December, 1902, directed to William D. Leonard, chairman, and others, commissioners, appointed under and by virtue of chapter 537 of the Laws of 1893, and continuing to act under the amendments to said act, commanding the said commissioners to certify and return to the office of the clerk of the county of New York all and singular their proceedings had upon the claim of the relators, together with their several appointments as commissioners.
    
      Charles Stewart Davison for the relators.
    
      Robert C. Beatty, for the respondents.
   O’Brien, J.:

The relators are the owners of property in the twenty-third and twenty-fourth wards, New York city, and claim to be entitled under chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, to receive compensation for damages thereto caused by changes of grade of the streets in that locality with respect to the tracks of the Harlem railroad made by virtue of chapter 721 of the Laws of 1887, and other statutory enactments. They filed their claim with the commissioners appointed under the statutes ; but the commissioners entered in the comptroller’s office an order dismissing the claim, which order stated that the dismissal rested upon the ground that the commissioners had no jurisdiction to hear the claim as the lands described aré not within the area limited ; and it also recites that both parties were heard and due consideration given to •the motion to dismiss made by the corporation counsel. Thereafter the commissioners concluded that they had erred in the decision thus made and granted a motion by the claimants to reopen the dismissed claims, and entered an order to that effect.

Before anything further was done, however, the terms of the commissioners expired, and thereafter new commissioners were appointed. The new commissioners took up the question as to the propriety of gran ting, the relators any relief, and in opposition thereto the corporation counsel made two objections, first, that the claim of the relators having been dismissed by the order originally entered, the commissioners had no power to reopen such dismissed claim and that the present commissioners could not go into the matter, the contention being that the commissioners having exercised their authority once it had ceased to exist; and, second, that in any event the commissioners had no jurisdiction to award any damages to the relators for the reason that the property was not within the area as limited and designated in the acts.

In support of the relators’ right to be heard upon the merits there appears in the record the. opinions of "the former commissioners in which, as well as in the affidavits of such commissioners used in applying for the writ of certiorari, it is stated that the order dismissing the claim was entered upon misinformation and inadvertently and without an opportunity for the relators to be heard and offer proof; that the commissioners were simply told by the corporation counsel that the premises in question, with considerable other property, was without the limitation of territory over which they had jurisdiction, and, without looking further into the matter, they entered the order of dismissal and then thereafter found that the property was within their jurisdiction, and that the relators are entitled to some compensation from the city.

After having these facts brought to their attention and listening to considerable evidence on the subject" of the area covered by the acts conferring authority upon them, and the actual location of the relators’ property, the new commissioners entertained a motion by the corporation counsel that no further testimony be received with respect'to the merits of the claim and a decision was so entered, the commissioners holding that there was no power to review the original order dismissing the claim and that certain of the property which they had been considering was without their jurisdiction. Thereafter the commissioners resigned and their resignations were accepted by the mayor. The claim of the relators having thus been rejected, they seek by certiorari to review the decision of the commissioners that no further testimony with respect thereto should be taken.

Two principal questions are thus presented, namely, as to whether it was proper and competent for the commissioners to review and recall the order first entered dismissing the claim of the relators and to .consider it upon the merits, and whether the jurisdiction of the commissioners extended to the claim made for the Belmont property. This latter question it will be unnecessary to discuss in view of the conclusion which we have reached that the commissioners properly refused to hear any further testimony with respect to the merits of the claim of the relators on the ground that the order first entered dismissing the claim was a determination which could not be recalled by the commissioners and was still subsisting.

In deciding the first question adversely to the relators .the Com-' missioners relied upon the Case of People ex rel. Chase v. Wemple (144 N. Y. 478). Therein the State Comptroller contended that he had no-power to vacate an order he had entered, although erroneously made, it being held, as stated in the head note, that “ the action of that officer, so far as it is of a judicial nature, is bounded and controlled by the strict and limited jurisdiction, conferred by statute, and no right is thereby' given to him to vacate his own orders except in the single case of the cancellation of-a tax sale.”And in, the opinion in that case it is said: “ It- is the general rule that officers of special and limited jurisdiction cannot sit in review of their own orders" or vacate or annul them. A justice of the' peace cannot set aside or alter a judgment after' he lias entered it. (Stephens v. Santee, 49 N. Y. 39.) The nearest approach to an exception is in the case of an audit by a board of supervisors to which the learned counsel for the appellant calls our attention. (People ex rel. Hotchkiss v. Supervisors, 65 N. Y. 225.) That case explicitly concedes the genéral rule and then goes upon the ground that the boards of supervisors áre a local legislature and exercise quasi judicial powers only in a qualified sense. I know óf no other exception and do not think we can graft upon the special and limited powers of the Comptroller when acting judicially the general powers which belong to courts -of original jurisdiction.” This rule thus formulated has been uniformly followed, arid the only Case to which our attention has beén directed as sustaining an opposite view is that of Osterhoudt v. Rigney (98 N. Y. 222), which contains an intimation that where a proper claim has been disallowed by a town board of audit because not- presented in proper form or not properly verified or accompanied by proper- vouchers or for any reason not involving a determination- oh the merits, it may. be presented to' and audited by a subsequent board. But in that case also as in the case of People ex rel. Hotchkiss v. Supervisors (supra) a distinction is to be noticed in that local legislative powers are involved.

In the case at bar we have to consider the act of a board of commissioners appointed by.special law with prescribed powers, náinely, the determination of claims brought before them for damages alleged to have been sustained by reason of the changes of grade' made under legislative sanction and direction. The position occupied by the commissioners may be likened to that of a referee to whom has- been referred questions for determination. The powers of such an officer are well established. He may determine the matters brought before him and file his report, and having done this he is functus officio, and may not thereafter review or recall his determination, however erroneously or inadvertently made. As said in Edwards on Referees (p. 80): “ After a referee has had an action sent to him on all the issues, and he has decided and made and delivered his report and directed final judgment, his power over the action is ended. It terminates his jurisdiction. (Pratt v. Stiles, 17 How. Pr, 211.) His discretion, as well as his authority over the interlocutory questions presented in the progress of the trial, ceases with - the decision of them, or, at least, with the trial itself. (Allen v. Way, 3 Code R. 243.) ”

That this rule obtains with respect to commissioners appointed to assess damages appears from the case of People ex rel. Mann v. Mott (60 N. Y. 649), wherein it was held, as stated in the head note, that “ When the assessment of the commissioners is completed and delivered to the commissioner of highways their power is exhausted. They cannot thereafter substitute another; and á paper purporting to be a revised or amended assessment subsequently filed has no legal force or validity.” So, too, in People ex rel. Luckings v. Railroad Commissioners (30 App. Div. 69 ; affd. on opinion below, 156 N. Y. 693) it was held where the commissioners had authorized, after a hearing, at which there was no appearance of the municipality or property holders, a street railway company to change its motive power, and the relator, a property owner, petitioned the board to reopen the matter, that the application should be denied, as the commissioners had no power to reconsider or review their action.

Our conclusion, therefore, in the case at bar is that the commissioners, having entered their order and made their decision dismissing the relators’ claims are as to them functus officio, and thereafter could not reopen the matter with respect to which they had thus already exercised their authority to consider and determine. Whether that determination was made erroneously and in conflict with the proof before the commissioners, or whether it was made by mistake or inadvertence, the power of the commissioners having been once exercised,'was' gone forever. The remedy of the relators, therefore, was not by application to them to reopen the claims, but was either by certiorari to review the determination of the commissioners if they deemed it to have been made upon insufficient facts, or else, if made by inadvertence. or through mistake as to the property, or upon a wrong assumption of fact, by moving the court to reopen the matter and send it back to the commissioners, as in the case of the reopening of a.subject which has once been before a referee and been denied. The -Supreme Court having the necessary jurisdiction, can' alone review, set aside or correct the determination of the commissioners. ’

It but remains to consider the further point that there was nothing expressed in the statute defining their powers which required the commissioners to file with the comptroller an order or decision dismissing -the claim, and that such action was of no effect, and the subject-matter was, therefore, still within their power- and it might again be considered by the commissioners. The answer to this contention is that it is immaterial whether or not the commissioners in filing an order, or in otherwise recording their determination -in the Comptroller’s office, did so pursuant to or in the absence of a statute making provision for such filing, because it appears that they did make a determination of the relators’ claim, deciding that it should be dismissed; and having so determined, their power and authority over the claim was exhausted. - The question of whether such determination was filed is immaterial.

We think, therefore, that upon the ground that the. commissioners could' not, review the determination dismissing the relators’ claim, the decision of the new commissioners that no further testimony could be taken with respect to its merits was right, and that .the writ of. certiorari to review such decision- should be dismissed, with fifty dollars costs and disbursements.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Writ, dismissed, with fifty dollars costs and disbursements.  