
    In the Matter of the Application and Petition of The Board of Water Commissioners of the Village of White Plains, Respondent, to Acquire Certain Real Property, as the Term “Real Property” is Defined by Section 3358 of the Code of Civil Procedure, Situate in the Town and Village of White Plains, County of Westchester and State of New York, Owned by or in which the Following Corporations and Persons, Defendants Herein, have an Interest, to wit: The Westchester County Water Works Company and Others, Appellants, Impleaded with Others.
    
      Eminent domain — report of commissioners, sent back to them to state the grounds of their decision.
    
    Where a water works" company, appealing from an order confirming the report of commissioners, appointed in a condemnation proceeding to determine the compensation which should be paid to it, raised the objection that the commissioners made no allowance for the corporate “franchise,” and the record showed that witnesses were permitted to testify concerning the value of the franchise,” but contained no ruling of the commissioners on the subject, and the report did not State the grounds of the decision, the court, in the exercise of its discretion, sent the report back to the commissioners to state the grounds of their decision and the rule adopted by them so far as any evidence was before them touching or concerning the alleged value of any corporate “franchise.” u
    
    Appeal by the defendants, The Westchester County Water Works Company and others, from a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of September, 1898, confirming the report of the commissioners of appraisal appointed in the proceeding, with notice of an intention to bring up for review upon such appeal a judgment in favor of the plaintiff entered in the office of the clerk of the county of Westchester on the 3d day of October, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term appointing such commissioners of appraisal.
    
      David McClure and Louis Marshall, for the appellants.
    
      Henry T. Dykman, for the respondents.
   Jenks, J.:

The report of the commissioners states that “ after the taking of testimony was finished, we did, all being present, and without any unnecessary delay, ascertain and determine the compensation which justly ought to be made by the plaintiff to the owners of the property appraised by us. * * * The amount, ascertained and determined by us, as aforesaid, to be paid by - the plaintiff to the owners of and persons interested in the property described in the petition herein and hereinafter described for,the acquisition by the plaintiff ■ of the fee of such property in the name of and on behalf of the village of White Plains, is the sum of One hundred and three thousand two hundred and ninety-eight dollars.” . This is the sole statement of the award made by the commissioners. It appears that upon the motion addressed to the learned Special Term for confirmation of the report, the learned counsel for the appellants moved that the court send the report back to the commissioners with instructions that the said commissioners should make and- file a supplemental report, showing the theory upon which the said commissioners proceeded, and the manner in which they arrived at the result. This was not done, for the report was in all respects ratified, approved and confirmed. It is now urged upon the appeal that the commissioners’ award was erroneous in that they made no allowance whatever for the corporate “ franchise.” If the commissioners did take into consideration the value of the corporate “ franchise ” in making their award, then there is, of course, no erroneous theory of awai'd in this respect based upon the fact that this element was entirely shut out of their consideration. Under such circumstances then, this precise question of erroneous theory would not be presented on this appeal. On the other hand, if it appeared that the commissioners did not, in their award, consider at all the value of the corporate “ franchise,” then the question as to whether it was their duty to consider it in this case might be before us.

We have examined the 3,000 pages of the record to find any ruling of the commissioners which excluded the question of the value of the franchise,” but in vain. On the other hand, we find that witnesses were permitted to express their opinions upon the subject.

Without intimating our opinion upon any branch of the case, and without in any way reflecting upon the commissioners, we feel constrained to send the report back to them to state the grounds of their decision and the rule adopted by them, so far as any evidence was before them touching or concerning the alleged value of any corporate “franchise.” Without intending to prescribe a form, we call the attention of the commissioners to the apportionment of the compensation tabulated in ■ Matter of City of Brooklyn (143 N. Y. 596, 600).

In Matter of Prospect Park & C. I. R. R. Co. (85 N. Y. 489) application was made to the Special Term by the landowners that the report be sent back to the commissioners with direction that they should state the grounds of their decision and the rule of law adopted by them in. making the same, which was opposed. and denied. The Court of Appeals say: “ The order, denying the motion of the landowner to have the report sent back to the commissioners with directions to them to state the grounds of their decision, was one resting in the discretion of the Supreme Court. It was at most mere matter of practice.”

We. are not limited merely to affirmance or to reversal, blit may direct a new appraisal before the same or new commissioners, in our discretion. (Code Civ. Proc. § 3377.)' The power that we now exercise is certainly much less than the discretion conferred upon us in the premises. In the case cited in 85 New York the power of the Special Term, under the statute, was simply that of confirmation (Laws of 1850, chap. 140, § 17), and yet the Court of Appeals htild that the power then exercised rested in the discretion of the Supreme Court. And then the General Term had, as the Appellate Division now has, the power, to direct a new appraisal before the same or new commissioners in its discretion. (Id. § 18.)

It should be plainly understood that this is in no respect a direction for a new appraisal, but simply deals with the form of the report of the commissioners of their determination made upon the testimony taken. --The order,' in conformity with this memorandum; may be settled by this court upon notice of ten days.

All concurred.

Proceedings remitted to the commissioners for action in accord anee with opinion-of Jen-ks, J.  