
    In the Matter of the Application of James W. Caffrey, Respondent, for the Appointment of Commissioners to Determine the Amount of Damages for Change of Grade of Streets and Avenues in The Village of North Pelham, Appellant.
    
      Commissioners to appraise damages for a change of grade—jurisdiction to determine whether a claim was properly filed cannot he given by stipulation —jurisdiction of the person may — where the question may he raised.
    
    Commissioners appointed under, section 159 of the Village Law (Laws of 1897,. chap. 414) to determine the compensation to be paid to a person who has filed a claim for- damages to his premises resulting from a change of grade, have no-power to entertain a motion to dismiss the proceeding upon the ground- that the claimant failed to comply with a statute requiring that such claim be-filed within a specified time, nor can such jurisdiction be conferred, upon the commissioners by a stipulation entered into between the attorneys for the claimant and the village.
    Such question should be raised upon the motion for the appointment of the commissioners.
    The question of the commissioners’ lack of jurisdiction may be raised for the first time in the Appellate Division on an appeal thereto from an order confirming the commissioners’ report..
    
      Semble, that jurisdiction of the person, but not of the subject-matter, may be conferred by stipulation or consent, or by conduct tantamount thereto.
    Appeal by The Village of North Pelham,from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of October, 1899., confirming the report of commissioners appointed to ascertain the amount of damages sustained by the petitioner by reason of the change of grade of Fourth street and Second avenue in the village of North Pelham.
    
      Henry L. Rupert [William J. Marshall with him on the brief], for the appellant.
    
      Milo J. White, for the respondent.
   Jenks, J.:

In 1898 the village authorities of North Pelham began proceedings for street improvements. The petitioner, under section 159 of chapter 414 of the Laws of 1897 (the Village Law), filed a claim for damages to his premises by the change and the raising of grades of certain streets. The claim was disputed, and upon the application of the petitioner the Special Term of this court appointed commissioners to ascertain the damage. On the day of the appointment this stipulation was made: “ It is Hereby Stipulated by and between the attorneys for the petitioner above named, and the village of ¡North Pelham, that the commissioners appointed herein pass upon and determine the issues raised herein by the answer to the petition herein, with the same force and effect as though the issues so raised had been tried by the court or a referee, upon the application for the appointment of commissioners, as provided by section 3367 of the Code of Civil Procedure (known as the Condemnation Law), and that all the rights of the parties to the above proceeding be and the same hereby are reserved to each of said parties in the event of an appeal therefrom, taken by either .party.”

The commission proceeded, and just before the close of the testimony for the petitioner the learned counsel for the village said : “ We have the right, after you introduce whatever testimony that you have, to dismiss the proceeding upon the ground of a failure to serve the' notice within the statutory time of sixty days from the time of the change of’grade,” The chairman of the commission said: “ All motions are reserved.” Thereupon the petitioner rested. At the close of the testimony for the village the attorney moved to dismiss the petition and proceedings on the ground that the “ petitioner’s notice of claim for damages herein was not served within the statutory period of sixty (60) days after the alleged change of grade,” and upon grounds of error in the admission of certain testimony. The motions were denied under exceptions. .The commissioners reported in favor of the petitioner, and after dyie notice the report, was confirmed.

The avowed purpose of this appeal is to obtain a construction of this part of section 159 of chapter 414 of the Laws of 1897, “ A person claiming damages from such change of grade must present to the board of trustees a verified claim therefor, within sixty days after such change of grade is effected,” the question being whether the words “after such change of grade is effected” refer to -when the work was done or to when the resolution or ordinance adopting the profile was enacted. And it is sought to .raise this question.by a review of the decision of the commissioners upon the said motion made before them for a dismissal of the proceedings. But the commissioners had no power to entertain such a motion. Section 159 provides in part: “ A person claiming damages from such change of grade must present to the board of trustees a verified claim therefor, within sixty days after such change of grade is effected. The board may agree-with such owner upon the amount, of damages to. be allowed to him. If no agreement be made, within thirty days after the presentation of thé claim, the person presenting it may apply to,the supreme- court for the appointment of" three commissioners to determine, the compensation to which he is entitled. Notice of the application must be. served upon the board of trustees -at least ten days before the hearing thereof. All proceedings subsequent to the appointment of the commissioners shall be taken in accordance with the provisions of the condemnation law, so far as applicable, except that the commissioners, in fixing their award, may make an allowance for benefits derived by the claimant from such improvement.” The commissioners under the Condemnation Law are appointed “ to ascertain the compensation to be made to the owners for the property to be taken for the public use specified.” (Code Civ. Proc. § 3369.) Their duties aré to view- the premises, to hear the proof and allegations of the parties, to reduce the testimony, if any be taken, to writing, to ascertain and determine the compensation which ought justly-to be made to the owners of the property appraised by them and to report to the court. (Id. § 8370.) Under the statute, plainly the sole power conferred upon these commissioners was to assess the damages. The State Constitution that authorizes such a tribunal limits its functions to the ascertainment of compensation (§ 7, art. 1), and if any further power is to be conferred upon it, it must be done by the Legislature alone within any prohibition of the organic law. (Matter of Village of Middletown, 82 N. Y. 196, 201.)

But it is contended that the power to determine the regularity of the proceedings was vested in this commission, by the stipulation of the parties. The plain purpose of the statute is to constitute a tribunal to assess damages like unto a jury. The plain purpose- of the stipulation is to confer powers upon the tribunal like unto those ■conferred upon, a judge. The statute provides that they shall act. as commissioners of condemnation act, whose powers are prescribed by section 3370 of the Code of Civil Procedure. The stipulation would confer the powers defined by section 3367 of that Code which in express terms confers such powmrs upon the court or its referee. This question is hot even embarrassed by any action of the court below, for it does not appear that'the question now up was ever raised before the court, or even mentioned in the report of the commission- . ers or in the order of confirmation.

Judge Cooley, in his Constitutional Limitations (5th ed., p. 493), writes: “ It is a maxim in the law that consent can never confer jurisdiction; by which' is meant that thé consent of parties cannot empower a court to act upon subjects which are not submitted to its determination and judgment by the law. * * * Consent is-sometimes implied from p failure to object; but there can be no-waiver of rights by loches in a case where consent would be altogether nugatory.” I am dealing now with jurisdiction, not of the person, but of the subject-matter, a distinction to be kept in mind, but which seems to have been lost sight of .by the learned counsel in the case at bar. In Dudley v. Mayhew (3 N. Y. 1) the court said l “It.has.been long and correctly settled that not even á direct assent by the parties can confer jurisdiction, or render the judgment of a tribunal in a matter over which it has not by law any cognizance, effectual. (Coffin v. Tracy, 3 Caine’s Rep. 129; Davis v. Packard 7 Peters, 276.) ” In Oakley v. Aspinwall (3 N. Y. 552) the court-say: “ But where no jurisdiction exists by law it cannot be conferred by consent —especially against the prohibitions of a law, which was not designed merely for the protection of the party to a suit, but for the general interests of justice.” (Citing authorities.) I note that the dissent expressed by Bronson, Ch. J., did not' quarrel with the principle, inasmuch as he wrote “ And besides, this is not a question of jurisdiction.” In Davidsburgh v. Knickerbocker Life Ins. Co. (90 N. Y. 530) the court say : “ There are, no doubt, many cases where the court' having jurisdiction over the subject-matter may proceed against a defendant who voluntarily submits toffs decision, but where the State prescribes conditions under which a. court may act, those conditions cannot be dispensed with by litigants, for in such a ease the particular condition or status of the defendant is made a jurisdictional "fact.” (See, too, Dakin v. Demming, 6 Paige, 95.) A stipulation or consent may affect jurisdiction of the person, but it cannot cover the action or the subject thereof. ( Parkhurst v. Rochester Machine Co., 65 Hun, 489; Burckle v. Eckhart, 3 N. Y. 132. See, too, Landers v. Staten Island R. R. Co., 53 N. Y. 450, 460; Wheelock v. Lee, 74 id. 495.) If a plaintiff, upon defeat, should raise the objection of non-jurisdiction, the court -in Sentenis v. Ladew (140 N. Y. 463) were inclined to the opinion that even he .might prevail if the court was one where jurisdiction was expressly limited by statute, or if there was some statutory inhibition of jurisdiction in a given case or class of eases. But the case at bar is more flagrant than some of the cases in the authorities, for here there is an attempt to transform a jury into judges, and not merely an effort to extend the jurisdiction of a court. (Andrews v. Wheaton, 23 Conn. 114; Bishop v. Nelson, 83 Ill. 601; Hoagland v. Creed, 81 id. 506.)

Hone of the cases cited by the learned counsel for the appellant is at war with the principle applicable to this case. Brady v. Nally (151 N. Y. 258) concerned the waiver of inCompetency of oral testimony. In Beul v. Trustees of Lockport (3 N. Y. 197) the court expressly said that the requirement was not a jurisdictional one. In Sherman v. McKeon (38 N. Y. 266) the owner of certain premises accepted'payment of an award, and was held thereby to renounce the objection that the taking of the property was unconstitutional. Allen v. Commissioners (38 N. Y. 312) holds that the State may waive a statutory provision as to payments upon a tax sale within a certain time, as it was a matter of convenience and for the advantage of the State only. Vose v. Cockcroft (44 N. Y. 415) was an action on a bond given to relieve an attachment under an unconstitutional statute, where it was held that the conduct of the obligor was a waiver. In Phyfe v. Eimer (45 N. Y. 102) there was a payment under a lease where the statute had protected the tenant against his agreement to pay rent, but the court held that the tenant could, by his agreement, waive a statutory provision in his favor that affected simply his property, and the case did not involve any consideration of public policy. I fail to see any apparent bearing of De Grove v. Metropolitan Ins. Co. (61 N. Y. 594). Ogdenshurgh & Lake Champlain R. R. Co. v. V. & C. R. R. Co. (63 id. 176) holds that a party may waive his-right to appeal,.or be deprived of it by stipulation if that waiver be based upon- some consideration or upon estoppel. Wilkinson v. First National Fire Ins. Co. (72 N. Y. 499) holds that parties to a contract may agree upon a shorter limitation to actions upon it than is fixed by general law, Baird v. Mayor (74 N. Y. 362) holds that a party may waive his private, individual right ” to a trial by jury instead of by a referee. The principle enunciated in Hilton v. Fonda (86 N. Y. 339) is that a private person may waive compliance by officials with a statute for his help. Steen v. Niagara Fire Ins. Co. (89 N. Y. 315) holds that the consent of the parties could create a new contract of insurance unaffected by the forfeiture of the original contract. In Matter of Cooper (93 N. Y. 507) the landowner joined in the application for the appointment of a commissioner, and after the termination of the proceedings moved to vacate them as unconstitutional and as not complying with the statute, and it was held that there was a waiver of provisions for his benefit .upon the principle of election. Stedeker v. Bernard (93 N. Y. 589) holds the binding effect of a stipulation not to appeal. The learned counsel, as I have said, fails to mark the distinction between jurisdiction of the person and jurisdiction of the subject-matter. The former may be acquired by consent or by conduct tantamount thereto (McCormick v. Pennsylvania Central R. R. Co., 49 N. Y. 303); not so as to jurisdiction of the subject-matter. (Authorities, supra, and see Wheelock v. Lee,, supra.)

I need not dwell upon the danger of permitting parties to create tribunals, thereby recognizing that private compact may have the force of public statute. Private judgment might thus reconstitute the judicial system of the State and confer upon inferior courts- or bodies powers that were never contemplated when they were authorized, but which were in effect withheld from them by the wish or the wisdom of the people. I have no doubt that the appellant deemed - that it was acting wisely in the public interests of the village in seeking a speedy adjudication, but the public interests of a locality must give way before the public policy of the State. ■

If the petitioner could not avail himself of tlie statute, the village-should have raised that question upon his application for the appointment of the commission, for the statute requires ten days’ notice of the application for the appointment of the commissioners. The petition shows, somewhat vaguely, that the grade was changed during the year 1898, and this is denied by the answer. The petition also shows that a notice of claim was “ duly 23resented ” on January 13, 1899, and it is admitted by the answer that such claim, was filed on that date, but it is not alleged therein that the grade-was changed more than sixty days previous to the filing of the.claim. 'The jurisdiction of a court of general jurisdiction is presumed, and is not questioned unless lack thereof is shown on the trial or a23pearsin the record. (Barker v. Canard Steamship Co., 91 Hun, 495 affd., 157 N. Y. 693.) We must assume, then, that the order of appointment was properly made. Further, t-mre is no appeal from, that order, and the notice of this appeal does not show any intention to bring up that order upon this a2)peal. In the Matter of Ludlow Street (47 App. Div. 318) we held that an appeal from an order confirming the report of the commissioners of assessment in a street opening presents no question of the regularity or validity of the proceeding, but involves only the question of correct discharge of the duties of the commission in imposing the necessary assessments and making.the necessary awards. And so the only question here before us is whether the commission properly discharged its function of ascertaining what compensation, if any, should be made to the petitioner. An appeal could have been taken from the order of appointment made by the Special Term. (Matter of City of Buffalo, 64 N. Y. 547; Matter of Thomson, 86 Hun, 405, 410; affd., 147 N. Y. 701.) But the decision of the commission as to the regularity or validity of the proceedings now sought to be reviewed is a nullity. (Risley v. Phenix Bank, 83 N. Y. 337; Matter of Walker, 136 id. 29.) The question of the lack of jurisdiction of the commission in the premises can be first raised here. (Matter of Livingston, 34 N. Y. 555, 570; Burk v. Ayers, 19 Hun, 17, 24; Dakin v. Demming, supra.)

To give effect to this stipulation on the ground of propriety in this case would still make a precedent, and no court should give such play to private compact. Pressing needs make but poor precedents, and precedents may work much mischief, for Bacon has said: “For many times the things deduced to judgment may be meum and tuum when the reason and consequence thereof may touch to point of estate.”

The only question before the court is whether the order of the Special • Term confirming the report of the commissioners of appraisal, who were' appointed to award compensation and made their report of an award, should be confirmed. The appellant claims no error and we find none.

The order should be affirmed, with costs.

All concurred.

Order affirmed, with costs.  