Statement of case.

full possession, and annulled all orders inconsistent with such possession. The company paid the awards and immediately closed up the gap. Held, that by so doing it did not waive its right of appeal from the order; that independent of the order, on payment of the awards, the condemnation was complete and final, the company was entitled to take full possession, the owners were divested of all estate and interest (§§ 17, 18, chap. 140, Laws of 1850), and nothing could be reviewed upon the appeal but the amount of the awards; and so, the company did not avail itself of any benefit conferred by the order appealed from, which should preclude it from appealing.

(Argued December 12, 1883; decided January 15, 1884.)

APPEAL by Elizabeth Wright and other land-owners from order of the General Term of the Supreme Court, in the second judicial department, made May 17, 1883, which vacated an order of Special Term, confirming the report of commissioners appointed herein to appraise the compensation to be paid said land-owners for the lands sought to be condemned in these proceedings for the use and benefit of the New York, West Shore and Buffalo Railway Company, which also vacated and set aside the report of the commissioners and appointed new commissioners, and awarded costs to said company against the land-owners.

The lands sought to be condemned lie under the waters of the Hudson river.

The facts so far as material are stated in the opinion.

Samuel Hand for appellant. The order of the General Term was a final order, and, therefore, appealable, because it awarded costs absolutely to the company against the owners. (Bergen v. Carman, 79 N. Y. 146.) The intermediate order denying the motion to dismiss the appeal is appealable, because it was made in a special proceeding, involves a substantial right, does not rest in discretion, and does not arise on conflicting evidence. (Code, § 190, subd. 3; id., § 1339; Laws of 1850, chap. 140, 18.) The proposition that railroad appraisal cases are not consistent with the uniform and well-settled practice of this court, in entertaining appeals from orders appointing commissioners of appraisal is untenable. (77 N. Y. 248; 89 id. 453;

Statement of case.

Code of Civ. Pro., §§ 1337, 1339.) A party who obtains a benefit under an order and accepts the benefit or receives the advantage, shall thereafter be precluded from having the order reviewed on appeal. (Knapp v. Brown, 45 N. Y. 207 ; Bennett v. Van Sickle, 18 id. 481; Vail v. Remsen, 7 Paige, 206; Dambman v. Schulting, 6 Hun, 29; Glacken v. Zeller, 52 Barb. 147; Platz v. City of Cohoes, 8 Abb. N. C. 392; Genet v. Davenport, 59 N. Y. 648.) Where the General Term makes an order imposing the payment of money, which order it is not authorized by law to make, such order involves a substantial right, not resting in discretion, and is appealable to this court. (Newton v. Russell, 87 N. Y. 527; Bergen v. Carman, 79 id. 146)

M. H. Hirschberg for respondent. The orders are not reviewable by this court. (Laws of 1850, chap. 140, §§ 17, 18; Matter of N. Y. C. R. R. Co. v. Marvin, 11 N. Y. 276.) The statute gives no appeal to this court. (Matter of N. Y. C. & H. R. R. R. Co. v. Cunningham, 64 N. Y. 60; N. Y. C. R. R. Co. v. Marvin, 11 id. 276; Matter of Canal St., 12 d. 406; In re O. & M. R. R. Co., 40 How. Pr. 335; Matter of D. & H. C. Co. v. Adams, 69 N. Y. 209; People ex rel. S. & U. H. R. R. Co., v. Betts, 55 id. 600; In re Appl'n Kings Co. El. R. R. Co., 82 id. 95; 20 Hun, 217; 64 N. Y. 60; 11 id. 276; 12 id. 406, 413; 70 id. 327, 359.) Even under the provision of the Code, no appeal lies from these orders. The proceedings are special, and the jurisdiction of this court is limited in special proceedings to appeals from final orders. (Code of Civ. Pro., § 190, subd. 3; Roe v. Boyle, 81 N. Y. 305.) The decision, as appears by the opinion, was based solely on the ground that the damages awarded were excessive; and this court has no jurisdiction to review such determination. (Snebley v. Conner, 78 N. Y. 218; Matter of Kings Co. El. R. R. Co., 82 id. 95; Fradenburgh v. Biddleton, 85 id. 196.) By judgment of law the proceedings before the commission on the first hearing were without authority and were void, and it was the same as if no appraisal had at SICKELS VOL. XLIX.

37

Opinion of the Court, per RAPALLO, J.

any time been made. (White B'k v. Nickols, 64 N. Y. 65.) Errors of law on the part of the commissioners, questions of admission of evidence, affidavits to contradict or impeach the truth of facts contained in the report, etc., cannot be considered on the motion to confirm. (N. Y. & E. R. R. Co. v. Corey, 5 How. 177; N. Y. & E. R. R. Co. v. Coburn, 6 id. 233; R. & S. R. R. Co. v. Budlong, id. 467; R. & G. V. R. R. Co. v. Beckwith, 10 id. 168; Matter of N. Y. & J. R. R. Co., 21 id. 134.) The confirmation of the commissioners' report was a completion of the proceedings by which the company was authorized "to enter upon, take possession of, and use the land for the purposes of its incorporation." (N. F. & L. O. R. R. Co. v. Hotchkiss, 16 Barb. 270; Crowner v. W. & R. R. R. Co., 9 How. Pr. 457; Dyett v. Pendleton, 8 Cow. 327.) The appeal was not waived by compliance with the order to confirm, and filling up the " passage-way. (Benkard v. Babcock, 27 How. 391; Abb. [N. S.] 421; People v. Stevens, 52 N. Y. 306.) missioners are bound to be guided in their proceedings by the established rules of evidence, a technical error in the report may be disregarded, but otherwise, if the error be of such a character as to show the commissioners have mistaken the principles that should govern the appraisal and that appellant may have been wronged by it. (Colby's Railroad Law, 175; 16 Barb. 100.) The court below properly directed a new appraisal before new commissioners. (N. Y. & E. R. R. Co. v. Corey, 5 How. 177; N. Y. & E. R. R. Co. v. Coburn, 6 id. 223; Matter of N. Y. C. R. R. Co. v. Marvin, 11 N. Y. 276.)

gap" or

S. C.,

17

The com

RAPALLO, J. By the confirmation at Special Term of the report of the commissioners, and the entry and recording of the order reciting the proceeding, and the payment of the compensation directed to be paid to the land-owners, the railroad company became entitled, under the statute, to take possession of and use the land for the purposes of its incorporation, and all persons who were parties to the proceeding were divested

Opinion of the Court, per RAPALLO, J.

and barred of all right, estate and interest in the land during the corporate existence of the company.

But, notwithstanding the change of title thus effected, and the taking possession by the railroad company, either party might under the provisions of the statute obtain a review, by the Supreme Court, of the appraisal of the commissioners. This review did not affect either the title or right of possession of the railroad company, but only the amount paid by it. If in the judgment of the court it was excessive or insufficient, the court was empowered to direct a new appraisal before the same or new commissioners, in its discretion. If by the second appraisal the damages should be reduced, the company would be entitled to have the difference refunded. If the amount should be increased, the company would be bound to pay the increased amount, and it would become a lien upon the land, the title to which had already become vested in the company. (Laws of 1850, chap. 140, §§ 17, 18.)

The court having in this case, on the appeal of the railroad company to the General Term, from the order confirming the report of the commissioners, exercised the discretion conferred upon it by the statute, by vacating the award of the commissioners and the confirmation thereof, and directing a new appraisal before new commissioners, its determination, in that respect, cannot be reviewed by this court. It involves simply questions of fact and matters of discretion, of which this court cannot take cognizance.

It is claimed on the part of the appellants that inasmuch as the order of the General Term awards costs against them absolutely, it is appealable in that respect, and consequently the whole of the order is reviewable here, and the case of Bergen v. Carman (79 N. Y. 146) is cited as an authority for that proposition.

Conceding that the part of the order which awards costs, and the judgment entered thereon, are appealable if the award of costs was contrary to law, or unauthorized by law, it does not follow that the other portions of the order are appealable, and Bergen v. Carman is not an authority to that effect. The ob

Opinion of the Court, per RAPALLO, J.

jection in that case was that the order appealed from sent the case back to the referee for a further hearing, and therefore, was not final. The difficulty in this case is that the order, in so far as it directs a new appraisal and the appointment of new commissioners, depended on questions of fact and was discretionary, so that, even if the general provisions applicable to appeals to this court extend to condemnation proceedings under the railroad law (which is controverted), the questions are not of such a nature that they can be reviewed here. The award of costs cannot confer jurisdiction over those questions. The next question which arises is on the order of the General Term denying the motion of the land-owners to dismiss the appeal from the order confirming the report of the commissioners.

It may be assumed that if, after the award of the commissioners had been confirmed, the railroad company had entered into a valid agreement with the land-owners to abide by the award and not to appeal from the confirmation thereof, or had done acts which in law had constituted a waiver of the right to appeal from such confirmation, the General Term could and ought to have enforced such agreement or waiver, and that its refusal to do so would present a question of law reviewable here. It is not necessary to decide that question now, because we are of opinion that no waiver of the right to appeal to the General Term was shown.

The facts claimed to constitute a waiver are that, under a former proceeding to acquire title to the lands in question, the company had obtained possession and begun the construction of an embankment and road-way thereon. Those proceedings were subsequently reversed and annulled, pursuant to the judgment of this court, and a new proceeding (the present one) was instituted. The company thereupon applied to the court, under section 21 of the Railroad Act, for an order allowing it to continue in possession until the final conclusion of the new proceeding, the compensation awarded in the first proceeding having been already deposited. The order asked for was granted, but a provision was inserted in it for the benefit of the land-owners,