Opinion
December 29, 1911.
Ralph K. Robertson and Spencer Clinton, for the appellants, Grade Crossing Commissioners.
Alfred L. Becker, for the appellant, The New York Central and Hudson River Railroad Company. Frank F. Williams, for the respondent De Groat, owner of parcel No. 1, described in the petition.
Henry W. Killeen, for the respondents Wilhelm and Dettman, owners of parcels Nos. 3 and 2, described in the petition.
It is elementary that a report of commissioners in condemnation proceedings must be confirmed unless there is shown to have been misconduct or palpable mistake on the part of the commissioners which resulted in harm to a party interested in the proceeding. Purely technical objections, not going to the merits, and omissions in no way harmful to a party, do not authorize the Special Term to refuse confirmation of the commissioners' report. ( Matter of New York Central Hudson River Railroad Company, 64 N.Y. 60.) All of the objections made by the respondents to the confirmation of the report of the commissioners, except the objection that such commissioners had not taken a proper oath of office, were properly overruled by the learned justice at Special Term for the reasons stated in his opinion, which is reported in Matter of Grade Crossing Comrs. ( 69 Misc. Rep. 23) and the reasons for overruling such objections need not be further amplified. None of such objections in any manner affected the merits of the controversy, and all were known or upon the slightest investigation might have been known to the respondents while the hearing was in progress and no objection was made by either of them until the report was made. It would seem intolerable that a party to such a proceeding may sit by, take a part in the litigation upon the merits, with full knowledge of the alleged irregularities and wait until a report is made or decision rendered and then, in case such report or decision is adverse to him, for the first time to insist that such irregularities render such report or decision of no binding force or effect. It cannot be pretended that either of such irregularities in any manner affected the award which was made to the respondents. The learned court below, however, thought that the failure of the commissioners to take the oath of office prescribed by the Grade Crossing Act was jurisdictional and that because of such failure the report could not be confirmed. The oath taken was the oath prescribed by the Constitution (Art. 13, § 1), and by it each commissioner did "for himself solemnly swear * * * that he will faithfully discharge the duties of the office of commissioner in the above-entitled proceeding to the best of his ability." In the oath prescribed by the Grade Crossing Act (Laws of 1888, chap. 345, § 12, as amd. by Laws of 1890, chap. 255, § 9) there was added or inserted "and to ascertain and report the just compensation to be paid to the owners of and parties interested in the lands for taking the same or for the injury thereto." So far as we can discover, there is really no substantial difference in the meaning of such oaths. Each required the faithful discharge of their duties as such commissioners, and in the oath taken it was recited that they were appointed and were to act in pursuance of the provisions of the Grade Crossing Act. But independent of which oath would have been the most appropriate to have been taken, the oath was taken publicly or at a regular meeting of the commission; at least, it was a part of the record, accessible to the inspection of any party interested, and we think it will not do for a party to sit by with full opportunity to examine such oath, wait until the evidence is closed and a report made, and then for the first time raise the objection that the oath taken by the commissioners was defective. Section 3368 of the Code of Civil Procedure provides: "The provisions of title one of chapter eight of this act shall also apply to proceedings had under this title" (condemnation proceedings), and section 721 of said Code, which is in title 1 of chapter 8 thereof, provides: "In a court of record, where a verdict, report or decision has been rendered, the judgment shall not be stayed, nor shall any judgment of a court of record be impaired or affected, by reason of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings or other proceedings: * * * 12. For an omission on the part of a referee to be sworn; or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced." It cannot be claimed in this proceeding that any injury resulted to the respondents because of the failure of the commissioners to take the oath prescribed by the Grade Crossing Act, that at most such failure was an irregularity, was in no sense jurisdictional, and that for such failure confirmation of the report should not have been denied. The commissioners in this case were among the first citizens of the city of Buffalo, were appointed practically with the consent of all the parties interested, at least no objection was made to either of them. They heard all the evidence offered by any party bearing upon the question of injury to their respective properties. They made a report which is acquiesced in by all the persons interested except the three property owners who are respondents upon this appeal. The learned court at Special Term did not consider that the awards made by the commissioners to them, respectively, should be set aside because inadequate, and an examination of the evidence satisfies me that the court was right in that regard.
We conclude that none of the objections made to the confirmation of the report of the commissioners is tenable.
It follows that the order should be reversed, and the motion to confirm the report granted, with costs.
All concurred, except ROBSON, J., who dissented.
Order reversed, with costs, and motion to confirm report of commissioners granted.