Waterford Electric Light, Heat & Power Co. v. Reed

Chester, J.: The practice which appears to have been followed in some cases of sending a report of commissioners in condemnation proceedings back to the commissioners, with a requirement that they state in a further report the grounds upon which their decision was based, is one not to be commended, and it has not been usual to send the report back in cases arising since the enactment of the present Condemnation Law (Laws of 1890, chap. 95, adding to the Code of Civil Procedure, chap. 23, tit. 1 thereof, §§ 3357-3384, inclusive). It is urged that section 3382 of such Code contains warrant for the practice followed, but the power there given to the court “ to make all necessary orders and give necessary directions to carry into effect the object and intent of this title,” relates only to a case “ where the mode or manner of conducting all or any of the proceedings therein is not expressly provided for by law.” No question is raised as to the regularity of the manner of conducting the proceedings resulting in the report of the commissioners, and section 3371 of the Code of Civil Procedure expressly provides for and regulates the procedure upon filing such report. That section gives power to the court upon motion for the confirmation of the report to “ confirm the report ” or to “ set it aside for irregularity or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insufficient,” so that it is plain that the general powers given to the court under section 3382 are not broad enough to warrant the order appealed from. The defendants also cite in support of their contention a dictum by Landon, J., in Board of Water Commissioners v. Shutts (25 App. Div. 22) as follows: “ We do not say that no case can arise in which the court may not send back a report, regular upon its face, requiring the commissioners to specify in a supplemental report such particulars as will indicate the elements of the damage they have awarded, or the principle upon which they have made their award, or both. The award may be so large or so small as to suggest error in some of these respects. The record may suggest but not show it. * * * The inherent power of the court is, no [107] doubt, adequate to enable it to secure such obtainable facts as are necessary to an intelligent decision.” To the suggestions quoted Mr. Justice Lardón adds: “But we think the report should not be sent back, unless it is at least made to appear to the court that there is probable cause to believe that the commissioners have made a material error which neither their report nor their minutes disclose,” and this court in that case reversed an order sending the report back to the commissioners for further report. Even if it be conceded that the court has the power to send the report back to the commissioners we think nothing appears in this record that called upon the court to exercise it in this case. There is nothing showing any misconduct on their part or irregularity in their proceedings. In the written objections filed to the confirmation of the report no specific error of law was pointed out, unless the alleged inadequacy of the award constituted such error. If there was any irregularity or error of law in the proceedings before the commissioners, or if the court deemed the award was insufficient, the language quoted from section 3371 provides the remedy, -which is to set aside the report, and not as was done here, to send it back to the commissioners. The order appealed from should be reversed, with ten dollars costs and disbursements, and the matter remitted to the Special Term. All concurred. Order reversed, with ten dollars.costs and disbursements, and the matter remitted to the Special Term.