
    Stephen F. Chaphe, App’lt, v. The State of New York, Resp’t.
    
      (Court of Appeals,
    
    
      Filed December 17, 1889.)
    
    
      1. Appeal—Cannot be had from order of Board of Claims denying MOTION FOR REHEARING.
    There is no authority for an appeal to the court of appeals from an order of the Board of Claims denying a motion for a rehearing of claims for damages.
    3. Board of Claims.
    Plaintiff having failed to appeal in time from an adverse decision of the Canal Appraisers, obtained an act of the legislature enabling him to make application to the Board of Claims for a rehearing. Held, that the act did not command or direct the Board of Claims to rehear plaintiff’s claims, but simply empowered them to entertain an application for a rehearing, and the question of granting it was, in their discretion, and not appealable.
    Appeal from order of the Board of Claims denying a rehearing.
    
      E. P. More, for app’lt; Charles F. Tabor, att’y gen’l, for resp’t.
   Earl, J.

On the 2d day of September, 1874, Chaphe, the appellant, filed with the canal appraisers two separate claims against the state for damages. The claims were heard by the canal appraisers, and on the 30th day of Hovember, 1875, they were both disallowed by awards of nothing. Ho appeals were ever taken from those awards, but in 1888 Chaphe procured the passage of an act of the legislature, chap. 519, as follows :

“ Within ninety days after the passage of this act, an application may be made to the Board of Claims, or any other court or body having jurisdiction thereof, for a rehearing or new trial of two several claims filed by Stephen F. Chaphe against the state of New York for damages, and decided by the canal appraisers on or about the thirtieth day of ¡November, eighteen hundred and seventy-five, and proceed thereon according to the practice in such cases the same as if made within the time limited by law.”

In September, 1888, under that act, Chaphe made a motion before the Board of Claims for a rehearing of the two claims, and the board, after hearing proofs and allegations on his part, and also on "the part of the state, made an order denying the-motion. From that order Chaphe has appealed to this court.

Under the act, chap. 836, Laws of 1866, the canal appraisers, could, within thirty days after an award had been recorded in their office, and notice thereof had been given to the claimant and the canal commissioners, order a new trial. But they were in no-case bound to give a new trial, and their decision upon an application for a new trial was final. By § 13 of the act, chap. 205, of the Laws of 1883, the Board of Claims probably has the same power to grant new trials which was formerly possessed by the canal appraisers.

The act of 1888 did not command or direct the Board of Claims-to rehear the claims of Chaphe, but simply conferred upon them power to entertain an application for a rehearing; and whether they should grant a rehearing or not rested in their discretion, in view of all the circumstances of the case. He had no absolute legal right to a rehearing, and they having denied his application-in the exercise of their discretion, if their order were otherwise appealable to this court, we certainly have no jurisdiction to review an order thus resting in discretion.

But there is no authority whatever in the statute for an appeal to this court from such an order. Section 10 of chap. 205 of the Laws of 1883 authorizes an appeal to this court only from a final award of the Board of Claims. The language is as follows:

“ When the amount in controversy exceeds five hundred dollars, either party feeling aggrieved by the final award or final order of the board, may appeal to the court of appeals upon questions of law only arising upon the hearing of the claim or upon excess or insufficiency of such award or order. The court of appeals-shall hear such appeal and affirm, reverse or modify such award or dismiss such appeal, or award a new hearing before the board of claims as justice may require.” In this case there was no bearing of the claims before the board, and no award whatever upon them. They were neither allowed nor disallowed, and hence this appeal does not come within the language or the purview of the statute.

Upon both grounds, therefore, the appeal should be dismissed.

All concur.  