ANDREWS, Ch. J.

Section 89 of the Highway Act (Laws of 1890, chap. 568), upon which the General Term relied in dismissing the appeal is as follows: "Within thirty days after the decision of the commissioners shall have been filed in the town clerk's office, any party interested in the proceeding may apply to the court appointing the commissioners for an order confirming, vacating or modifying their decision, and such court may confirm, vacate or modify such decision. If the decision be vacated, the court may order another hearing of the matter before the same or other commissioners. If no such motion shall be made, the decision of the commissioners shall be deemed final. Such motion shall be brought on upon the service of papers upon the adverse parties in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the County Court shall be final, excepting that a new hearing may be ordered as herein provided." The declaration in this section, that the decision of the County Court shall be final, must be given its natural and reasonable meaning. It is competent for the legislature to restrict the right of appeal in actions or special proceedings where its power over the subject is not restrained by the Constitution. The Constitution fixes the manner in which compensation shall be ascertained for private property taken for public use. (Art. 1, sec. 7.) But when ascertained in the constitutional method, what review shall be permitted of the action or determination of the jury or commissioners, within their jurisdiction, rests in the discretion of the legislature. The courts affirmed this principle in the construction of section 18 of the General Railroad Act of 1850, and gave to the language of the section its natural interpretation. It was held that the declaration that the decision of the commissioners on a second hearing should be "final and conclusive," precluded any further appeal.

Section 89 of the Highway Act of 1890 was intended, we think, to apply the same principle to proceedings in invitum for the laying out of a highway. The act gives to the landowner two opportunities to be heard as to the necessity of the highway and the damages he will sustain by its construction, first, before the commissioners, and second (if the decision is adverse), before the County Court, on an application to vacate or modify the proceeding. The application to the County Court, moreover, is in the nature of a rehearing on which new proofs may be presented bearing upon the questions in controversy. It is not unreasonable to suppose that the legislature in enacting that the "decision of the County Court shall be final," intended to stop the litigation at that point on the two questions as to the necessity of the proposed highway and the compensation to which the landowner was entitled. No other construction is consistent with the language, and we, therefore, concur in the general view taken by the General Term of the construction of section 89. But the declaration that the decision of the County Court shall be "final" is necessarily subject to the limitation that the County Court had jurisdiction to make the order which it made. So, also, if the decision confirmed the order of commissioners laying out a highway, but the order of the commissioners was so defective in the description or location of the highway that the highway could not legally be located or ascertained, then we apprehend the order of the County Court could not, in the nature of things, be final. The order of the County Court is "final" within its proper scope and purpose. It determines, finally, the question of the necessity of the proposed highway. It concludes the landowner as to the amount of damages when the order confirms the award of the commissioners. It is final as to both these questions, and errors of law or fact in the course of the proceedings, unless jurisdictional, do not affect the conclusiveness of the decision of the County Court. But it would be an anomaly to say that such an order would be final or conclusive in respect of questions of power and jurisdiction. They will continue to be open, notwithstanding the decision of the County Court. And where such difficulties exist, fundamental in their character, the principle of finality declared in the statute does not, we think, apply. To permit an appeal upon such questions does not contravene the purpose of the statute, and its denial would be inconvenient in practice. (See McMahon v. Rauhr, 47 N.Y. 72.)

We think there are two questions presented by the record before us which the General Term should have passed upon. The first is, was there any sufficient description, by reference or otherwise, in the order of the commissioners, of the highway proposed to be laid out. The second question is, was it competent for the County Court, after having reached the conclusion that the damages awarded by the commissioners to the appellants Miller were inadequate, to determine the amount by which they should be increased, or were the landowners entitled to have the case sent back for a reassessment of damages by commissioners appointed as provided by the Constitution. (See In re Vil. of Middletown, 82 N.Y. 202.) We do not decide these questions, nor either of them. They must be first decided by the General Term (now Appellate Division) before our jurisdiction to pass upon them attaches. The dismissal of the appeal below shows that the questions were not passed upon in that court.

The order should be reversed and the case remitted to the Third Appellate Division for further consideration.

All concur, except MARTIN, J., not sitting, and VANN, J., not voting.

Order reversed.