In re Kings County Elevated Railway Co.

The order appealed from is silent as to the ground upon which it was made, whether of law or fact. In such case, we are bound to suppose that the General Term examined the case before it upon the matters of fact involved, as well as upon the questions of law presented, and based the order made upon conclusions drawn from the former, as- well as the latter. If it were not so, the party feeling aggrieved should have seen to it that it was expressed in the order that' it was grounded upon conclusions of law only. In the case in hand the use of this rule will not harm the appellants, for it is palpable from the whole case, and -especially from the prevailing opinion at General Term (to which we would not resort to contradict the order, or to explain it even unless it were ambiguous), that the refusal to confirm the report of the commissioners was because the General Term deemed it, as a matter of fact, improper, inexpedient and impolitic to do otherwise. How this was the exercise of discretion by the General Term. With the appropriate exercise of discretion by that tribunal, this tribunal may not interfere. (The People ex rel Vanderbilt v. Stilwell, 19 N. Y. 531 .) That the court below had a discretion to exercise in making or withholding confirmation of the report of the commissioners we cannot doubt. It was considered worthy of a constitutional provision (Canst., art. 3, §

And that interpretation is sustained by the adjudications in analogous cases. Thus it was held that the opposition to a motion to confirm a report of commissioners of estimate and' assessment, in a street opening case, is in the nature of an appeal. (In re Mt. Morris Square, 2 Hill, 14 , 27.) If an appeal, or in the nature of one, then the Supreme Court is called upon to do more than a formal act; it must exercise its discretion or judgment on the case before it in all its features of fact and law. So In re N. Y. C. & H. R. R. R. Co. ( 64 N. Y. 60 ), it is held, that where cause is shown for setting aside an order theretofore made, confirming report of commissioners of the appraisal of lands taken for a railroad, there is power to entertain a motion therefor; and that if there be not an entire lack of merit in the motion, whether it shall be granted is a question of discretion, the exercise of which may not be reviewed in the Court of Appeals. (See, also, N. Y. C. R. R. Co. v. Marvin, 11 N. Y. 276 ; In re Canal Street, 12 id. 406-413 ; Striker v. Kelly, 7 Hill, 9 ,19-20.) Many of the opinions given, in adjudicating upon this topic, dwell upon the protection found for private rights in the power of supervision and review lodged in the Supreme Court; and the fact that that power is there lodged, and the consideration that it is ample for the purpose have helped to the conclusion that it was meant that the power of that court should cover the whole

It is objected that the interpretation that we make gives too much force to the word confirm, and confers more power upon the General Term than the Constitution meant to do by the requirement that the determination of the commissioners to be operative should be confirmed by that tribunal. We do not rest our interpretation alone upon the bare sense of that word, but mainly upon the scope and purpose of the whole of this provision of the organic law, which culminate in the direction that the determination confirmed by the court may be taken in lieu of the consent of the property owners. The cases cited, such as Emmett v. Hoyt ( 17 Wend. 416 ), Merritt v. Thompson ( 27 N. Y. 233 ), Barrett v. Wilson (1 C. M. & Roscoe, 586), are not in conflict; for they are based upon a statute which specifies on what grounds an award of arbitration may be vacated or modified. By express provision of statute the award is to be confirmed by the court, unless some one of those grounds is shown to exist (2 B. S. 542, §§ 9, 10, 11), or they go upon the reason that the parties have themselves agreed and submitted to be bound by the conclusions of fact of the arbitrator chosen by themselves; or, as in Eaton v. Benton ( 2 Hill, 576 ), the rule is observed that, in general, where a referee

It is also contended that the General Term is not, in, the matter committed to it by this constitutional provision, a tribunal of original jurisdiction, but simply an appellate court. It is then urged that an appellate court has no power by implication to review findings of fact. How although we concede that the proceeding to confirm, or otherwise, the determination is in the nature of an appeal, so that the General Term has not a mere formal function only, we cannot admit that the tribunal that has the power to appoint commissioners, whose duty it is to make report to the authority that created them, which report is of no effect until confirmed by that authority, is not a tribunal of original jurisdiction, so far as to have the function to review the action and conclusion of its commissioners in all the particulars that enter therein. So that the cases cited on this point, Wakemam v. Price ( 3 N. Y. 304 ); Thurber v. Townsend (22 id. 518); Starr v. Trustees of Rochester ( 6 Wend. 566 ); Regina v. Stock (8 Ad. & Ell. 405); Lowell v. Champion (6 id. 410), do not, in our judgment, affect the conclusions that we have reached. In short, without reviewing or naming all the cases cited to bear upon this question, we are convinced that in view of the evil to be guarded against, and for the effectual protection of private rights so threatened as to need a specific constitutional provision for their safeguard, it was meant that the General Term, in harmony with the analogies we have produced, should have the power and duty to review the whole case, and to pass upon the sufficiency of the facts and circumstances to warrant the determination of the commissioners that there ought to be a street railroad in any municipality, when there was not in favor of it one-half of the property owners to be affected. As we have said, or intimated, the commissioners are to report their determination to the General Term, and that determination is in abeyance, as an operative act, until it is confirmed by the court, and it is not until then that it may be taken in lieu of the consent of one-half of the property owners.

The appeal should be dismissed.

All concur.

Appeal dismissed.