
    The People ex rel. Charles C. Burnham, Resp’t, v. Edward P. Jones et al., as Commissioners of the Land Office, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 9, 1888.)
    
    Commissioners of the land office hate the right to appeal from the REVERSAL OF THEIR DECISION BY GENERAL TERM.
    The B. B. Co. filed with the defendant as commissioners of tlie land office its application for title to certain lands under the waters of Lake Ontario, which application was opposed by the relator upon the ground that he was the owner of a portion of the adjacent uplands. The commissioners of the land office after hearing both parties passed a resolution that a patent be issued to the B. B. Co. substantially as asked for. To review the action of the commissioners a writ of certiora/ri was granted by the supreme court, and when the matter came to a hearing before the general term thereof, the resolution of the said commissioners was reversed, and the application of the B. B. Co. for the land in question was denied. The-said commissioners and the B. B. Co. separately appealed to the court of appeals from the order entered pursuant to said decision. Held, that it is the duty of the said commissioners to defend any determination which they have made, and which they believe to be right. While they did not have any property or pecuniary interest in the matter in controversy, they were in a legal sense aggrieved by the decision appealed from.
    Motion to dismiss the appeals from the judgment of the supreme court, general term, third department, reversing the decision of the commissioners of the land office granting an application for a grant of lands under the waters of Lake Ontario.
    
      Chas. F. Tabor, attorney-general, for appl’ts; W. B. Hornblower, for resp’t.
    
      
       See 17 N. Y. State Rep., 586.
    
   Earl, J.

Under section 67 of article 4, chapter 9, part 1 of the Revised Statutes, as amended by the Laws of 1850, chapter 283, section 1, on or about the 30th day of September, 1887, the Bartholomay Brewing Company filed with the defendants as commissioners of the land office, its application for title to certain lands under the waters of Lake Ontario, at Charlotte, in the county of Monroe, which application was opposed by the relator upon the ground that he was the owner of a portion of the adjacent uplands. Upon the questions thus raised, both parties submitted to the commissioners of the land office various deeds, searches of titles, maps and affidavits, and the commissioners after hearing both parties, passed a resolution that a patent issue to the Bartholomay Brewing Company substantially as asked for. To review the action of the commissioners a writ of certiorari was granted by the supreme court, in compliance with which the commissioners made their return in due time, and the matter came on for hearing at the general term of the supreme court, which reversed the resolution of the commissioners of the land office, and denied the application of the Brewing Company as to the land in question, without costs for or against either party. A final order was entered upon the decision from which the commissioners of the land office, and the Bartholomay Brewing Company have separately appealed to this court.

The relator now makes this motion to dismiss both appeals. He claims that the commissioners of the land office are not aggrieved by the decision of the general term, and that, therefore, they have no right to appeal therefrom.

That decision interferes with them in the discharge of their duties. They having resolved that it was their duty, under the statute, to convey the land to the Brewing Company, determined to do so, and this decision arrests their action. The statute gave them power to grant so much of the lands under navigable waters as they should deem necessary to promote the commerce of the state, or for the beneficial enjoyment of the same by the adjacent upland owners, and this decision, if sustained, interferes with their exercise of this power. It is their duty, representing both public and private interests, to defend any determination which they have made, and which they believe to be right. Having determined that the Bartholomay Brewing Company was the adjacent upland owner, and thus entitled to the grant asked for, they should defend their decision, and not permit the land to be conveyed to any other claimant. While, therefore, they did not have any property or pecuniary interest in the matter in controversy, they were, nevertheless, we think, in a legal sense, aggrieved by the decision appealed from.

That officers thus situated may be both appellants and respondents upon appeals to this court is shown by the uniform practice for many years. (Allen v. Comr’s of Land Office, 38 N. Y., 312; People ex rel. Cayuga Indians v. Comr’s of Land Office, 99 N. Y., 648; People ex rel. Mayor etc., v. McCarthy, 102 N. Y., 630; 2 N. Y., State Rep., 546; People ex rel. Millard v. Chapin, 104 N. Y., 96; 5 N. Y., State Rep., 588; People ex rel. Wright v. Chapin, 104 N. Y., 369; 5 N. Y., State Rep., 837; People ex rel. N. Y. O. & W. R. R. Co. v. Chapin, 106 N. Y., 265); 8 N. Y., State Rep., 678.

The case of People ex rel. Breslin v. Lawrence, (107 N. Y., 607; 13 N. Y., State Rep., 108), is not an authority for this motion. There Judge Lawrence simply decided that the relator was not illegally detained in custody and he had no further duty to perform. He was no more bound to see that he was kept in custody than any other citizen. He was not hindered by the order appealed from in the discharge of any duty or the exercise of any power conferred upon him by law. Hence he had no more interest or right to appeal than any judge whose decision has been interfered with or reversed.

The Bartholomay Brewing Company was not a party to the proceeding upon certiorari and was not made a party as it could have been under section 2137 of the Code. There appears to be no reason for making it a party as all its rights can be effectually protected by the appeal of the commissioners. That appeal brings before us for review every question which could be presented by the brewing company if a party. Upon the argument of the appeal brought by the commissioners the brewing company can, by permission of the court, be heard by counsel if desired. But it has no standing here as an appellant. Its appeal should therefore be dismissed, without costs, and the motion to dismiss the appeal of the commissioners of the land office should be denied, without costs.-

All concur.  