In re the New York, Lake Erie & Western Railroad

Rapallo, J. This application was made under section 22 of the General Railroad Law, and commissioners were appointed by the Supreme Court to examine the route originally located by the respondent and the change proposed by the appellant. This change, so far as it related to the route, was very slight, and the main object of the application seems to have been to change the manner of crossing the appellant’s road, from a grade to an overhead crossing. The commissioners, after taking testimony and personally inspecting the location of the route proposed by the respondent, and the substituted route proposed by the appellant, reported in favor of retaining the route originally located, assigning as the reasons for their conclusion, that an overhead crossing was quite as practicable by one route as the other, and that there was nothing in the testimony bearing upon that question which gave the alternate route any advantage over that originally located. From this decision of the commissioners the appellant appealed to the General Term where it was affirmed, and from that order of affirmance the present appeal is taken. [390] We think the question involved was one of fact, and, independently of the general question of the appealability to this court of orders in proceedings of this description, under the General Railroad Law, it is very certain that such an appeal does not lie to review questions of fact passed upon by the' commissioners after hearing testimony and personally inspecting the locus m quo. The question whether the crossing of appellant’s road should be at or over grade was determinable under subdivision 6 of section 28, and should be brought up under that sec-' tian. The appeal should be dismissed. All concur. Appeal dismissed.