Opinion
March 10, 1911.
Maurice Deiches, for the appellant.
Francis J. Byrne, for the respondent.
We should have no hesitation in affirming the order if it were appealable. That question merits examination as we cannot find that the provision of the charter (Laws of 1901, chap. 466, § 1442) which governs the right to appeal has been construed.
A somewhat similar provision applicable to street opening proceedings was construed in Matter of Commissioner of Public Works ( 111 App. Div. 285; affd., 185 N.Y. 391), wherein it was decided that the statute did not authorize an appeal from an order of the Special Term, refusing to confirm the report of the commissioners. That decision would be controlling were it not for a sentence of said section 1442, which standing alone, might seem to authorize an appeal from any determination of the Special Term. Section 1438a prescribes what the Special Term may do upon an application to confirm a report. A reading of that section will aid in the construction of said section 1442. So far as material the two sections are as follows:
"§ 1438a. Upon the hearing of the application for the confirmation of the said report * * * the said Supreme Court at a Special Term thereof * * * shall by order, after hearing any matter which may be alleged against the same, either confirm said report in whole or in part or refer the same back to the same commissioners for revisal and correction, or to new commissioners, to be appointed by the said court, to reconsider the subject-matter thereof; and the said commissioners to whom the said report shall be so referred shall return the said report, corrected and revised, or a new report to be made by them as aforesaid in the premises, to the said court without unnecessary delay, and the same, on being so returned, shall be confirmed or again referred by the said court as justice shall require, and such report when confirmed by said court, in whole or in part, shall be final and conclusive as well upon the said city and the said department or board as upon the owners, lessees, persons and parties interested in and entitled to the lands, tenements, hereditaments and premises mentioned in said report, and also upon all other persons whomsoever."
"§ 1442. Within twenty days after notice of the confirmation of the report of the commissioners as provided for in section fourteen hundred and thirty-eight-a of this act, any party interested and deeming himself or themselves aggrieved, may appeal, by notice in writing to the other party, to the Appellate Division of the Supreme Court in said judicial district, from the appraisal and report of the commissioners. Such appeal shall be heard on due notice thereof being given according to the rules and practice of said court. On the hearing of such appeal, the court may direct a new appraisal and determination of any question passed upon, by the same or new commissioners, in its discretion, but from any determination of the Special Term an appeal may be taken upon the merits to the said Appellate Division of said court, and from any determination of the said Appellate Division any party, if aggrieved, may take an appeal to the Court of Appeals, but only as to a question affecting the principle of the assessment of damages by the said commissioners, or a question relating to the challenge of a commissioner, or to the conduct of the said commissioners or any of them, indicating impropriety, bias, neglect or other disqualification."
The words "but from any determination of the Special Term an appeal may be taken upon the merits to the said Appellate Division of said court" are not to be construed apart from their context. They are a part of the clause, relating to a new appraisal, directed by the Appellate Division, and may have been intended to explain and limit the meaning of the words "final and conclusive" in said section 1438a. Moreover, they must be harmonized, if possible, with the 1st sentence of said section 1442, which was evidently intended to prescribe the appealable determinations of the Special Term, i.e., those confirming the reports of the commissioners. The words "any determination of the Special Term" in the sentence under consideration may, therefore, be construed as referring to any such determination, the purpose of the sentence being to provide that an appeal might be taken to the Appellate Division upon the merits, but from a determination of the Appellate Division an appeal to the Court of Appeals could only be taken as to a question affecting the principle of the assessment or relating to the challenge of a commissioner or to the conduct of the commissioners or any of them. Thus construed, every part of the section has a meaning and may be given effect. Otherwise, the Legislature intended in one sentence to nullify the sentence immediately preceding.
The appeal should be dismissed, with ten dollars costs and disbursements.
INGRAHAM, P.J., LAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Appeal dismissed, with ten dollars costs and disbursements.