
    In the Matter of The Nassau Electric Railroad Company.
    
      Commissioners to determine whether a street railroad shall he 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 construe1 tion 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 concurred in by Justices Barnard and Dyicman, and this decision was ■approved and 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 Gable 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; 7 and their determination that such road ought to be constructed and oper■ated, 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 io :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 present Constitution is as follows: “No law shall authorize the con-lots of land only that shall front upon such street * * * and in proportion to their respective frontages thereon.”

The expense of paving the street is to be assessed upon the several lots of land benefited by the improvement, but the expense of setting the curb and making the gutters is to be assessed only upon lots fronting upon the street, in proportion to their respective frontages.

Our conclusion is that the judgment should be modified so as to provide that the plaintiff’s property is liable to be assessed for its proportionate part of one-third of the total expense thereof, to wit, for the sum of $791.53 and for the sum of $931.59 for the expense of gutters and curbs, amounting in all to $1,723.12, and as so modified the judgment should be affirmed, without costs of appeal.

All concurred, except Pratt, J., not voting.

Judgment modified as stated in the opinion, without costs.  