Alexander agt. Katte.

cancellation of his subscription; he is charged with knowledge of a design to get possession of all the securities of the St. Louis Company by a pretended payment therefor with a draft of the Life Association.

Whether the transaction was fraudulent or not depends upon whether the draft was a valid consideration for the securities and could and can be enforced against the drawer. It is for the interest of defendant to have the parties to that scheme, and who made and who received the draft, joined as defendants in this action that he may have the benefit of their defense, and that any judgment as to the validity of the transaction in question may bind them.

I have looked at the complaint to ascertain if, apart from the demand for equitable relief, there is a cause of action for damages, or upon contract alleged against defendant, which would warrant a judgment against him as in an action at law. I find none. The complaint is an application for equitable relief, and as the defendant does not answer but demurs, the judgment granted could not be more favorable than that demanded in the complaint, even though averments that would be proper in setting forth a legal cause of action are embodied in the pleading (Kelly agt. Downing, 42 N. Y., 71; Code, sec. 1207). Part of the relief demanded is judgment for the amount of the defendant's notes, but plaintiff must first obtain his decree as prayed for, that said notes are part of the assets of the company of which plaintiff is receiver, before judgment for the amount of said notes can be awarded.

Demurrer sustained; judgment accordingly, with costs.

Matter of New York, Lackawanna and Western Railway Co.

SUPREME COURT.

In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY to acquire lands of CHARLES S. LONGWELL.

Railroads Manner of acquiring title to real estate powers and duties.

Commissioners, their When award of commissioners will be set aside for irregularities - Right of owner to examine witnesses.

Where the commissioners went to the premises together and viewed the premises, the owner being present, one of the commissioners stating to him the legal rule of damages in such cases, and he stating to the commissioners the items of damage claimed by him:

Held, that the circumstance that during a part of the time while the commissioners were on the premises one of them was separated from the others is of no moment, provided that each viewed the premises sufficiently to enable him to judge of the amount of the damages, and provided the sum arrived at was the result of their joint deliberations. Where the land owner expressly waived the right to produce and examine witnesses and consented with the counsel for the railroad company that the commissioners might act upon a view of the premises, which they proceeded to do and made their award. On motion to set aside the award it appeared from the affidavit of the land owner that in declining to produce witnesses he acted upon a misapprehension as to his legal rights, founded upon erroneous information derived by him from another person, to the effect that he would be entitled to a rehearing, as a matter of right, before other commissioners, and that on such rehearing he could examine witnesses:

Held, that the land owner is entitled to the relief asked for by him on the ground that he was misled to his prejudice by erroneous information as to his legal rights.

It is not necessary that any blame be imputed to the commissioners or the railroad company or anyone acting for the company to entitle the land owner to relief.

Fourth Department, General Term, April, 1882.

THE appellant Longwell is the owner of a valuable farm near the village of Bath, New York, containing about 300 acres, upon which he resides. The railroad of respondent, VOL. LXIII 34

Matter of New York, Lackawanna and Western Railway Co.

now in process of construction, runs across the farm for a distance of nearly half a mile, passing through appellant's barns and near his house, and destroying a valuable driveway and shade and fruit trees. For reason stated in the third point appellant omitted to give any proof whatever before the com missioners. The award was $3,500, and much too small. This motion was then made by appellant to set aside the commissioner's report for certain irregularities stated in the notice of motion, and also upon the merits for favor, by reason of appellant's misunderstanding of the facts and his rights. The motion was heard at the same time with a motion by respondent to confirm the commissioner's report. The report was confirmed, and the motion to vacate same and open the default was denied. From that order this appeal is taken.

J. F. Parkhurst, for appellant.

I. There was no sufficient or legal viewing or examination of the premises by the commissioners: 1st. Because the commissioner Stephens did not act with the others when they viewed the premises, and the examination was insufficient. 2d. Because the commissioners acted upon the statement of an unsworn witness as to the grade across appellant's land. · No proofs whatever were given upon either side before the commissioners. The award was, therefore, based wholly upon an inspection of the premises by the commissioners. By this course the commissioners became at once the judges and the witnesses. The law contemplates that they shall not only view the premises, but do so together, and together discuss the points bearing upon the amount of damage. The statute reads: "They shall view the premises * * * and hear the proof, and they, or a majority of them, all shall determine, &c.

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being present,

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(6 Edm. Stat., 368). The statute and authorities clearly show that all the commissioners must act together (6 Edm. Stat., 368, 369; Cruger agt. H. R. R. Co., 12 N. Y., 196; Brewer agt. Kingsley, 1 Johns. Cases, 334; Small agt. De Forrest, 2

Matter of New York, Lackawanna and Western Railway Co.

How., 176; McInroy agt. Benedict, 11 Johns., 402; Tounsend agt. Glens Falls Ins. Co., 10 Abb. N. I., 177).

II. The commissioners acted upon the statement of an unsworn witness as to the grade across appellant's land. Commissioners upon these hearings are bound by the rules of evidence which govern the trial of a civil action (Rochester, &c., R. Co. agt. Budlong, 6 How., 467). And as it would have been error for a referee to have taken this unsworn statement, so was it error in the commissioners (Security Fire Ins. Co. agt. Martin, 15 Abb., 479). The fact that Mr. Longwell did not object to Miller's going into the field to qualify himself as a witness was not a consent that his unsworn statement should be received by the commissioners. Statutes in derogation of common-law right are strictly construed, and all possible inferences indulged in in favor of the land owner (Sharp agt Johnson, 4 Hill, 92; Doughty agt. Hope, 3 Denio, 395; Wheeler agt. Milis, 40 Barb., 644; Jackson agt. Shepard, 7 Cow., 88). It is not a sufficient answer to this that Longwell was present and did not formally object and except as upon a trial: 1st. Because, as will be seen in the next point, Longwell was acting under a misapprehension as to his rights and he should not be deemed to have waived or consented to these irregularities. 2d. The irregularities complained of were the insufficient or improper conduct of the court itself, as to which no exception would be required.

III. Longwell's default in not producing witness was sutticiently excused and the default should have been opened as a matter of favor upon terms. The court has power in its discretion to order a rehearing (In re N. Y. C. and H. R. R. Co., 64 N. Y., 60; Erie R. Co. agt. Coburn, 6 How., 223).

M. Rumsey Miller, for railway company.

I. The motion to set aside order appointing commissioners and their report for first alleged irregularity, viz., “that O. Seymour was incompetent to act as commissioner by reason of

Matter of New York, Lackawanna and Western Railway Co.

his business relations with counsel for the railroad company" was properly denied.

II. The motion to set aside on the second and third alleged irregularities, viz., "all the commissioners did not act together in viewing the premises; the commissioner James H. Stevens did not act with the other commissioners, nor was he present with them when viewing the premises," was properly denied.

III. The claim of appellant's counsel made in the court below that "Longwell should have a new hearing because he thought he had a right to have another hearing as a matter of right" was properly overruled. It is difficult to see how this. question is raised on this motion, nothing of the kind appearing in the report nor being specified in the notice of motion. Longwell's ignorance of the law is no ground for setting aside the award (Mayor agt. Green, 1 Hilt., 393, 394; Wharton's Legal Maxims, 308; Maxim, 133, and cases there cited). An award without evidence is very common. It is perfectly regular and proper, and having had opportunity to present evidence and failing to do so they cannot complain (Rondout and Oswego R. R. Co. agt. Field, 38 How., 187, 188; Rohdout and Oswego R. R. Co. agt. Deyo, 5 Lans., 300). The statute is clear on this question: "The commissioners shall hear the proofs and allegations of the parties and reduce the testimony, if any is taken by them, to writing" (Laws of 1874, chap. 582, sec. 4). The above case is right in point and holds that even if injustice was done, where the land owner has an opportunity to present evidence and does not do it, he cannot afterward be heard to complain (Rondout and Oswego R. R. Co. agt. Field, 38 How., 187, 188).

IV. The application for relief is analogous to a motion for a new trial on ground of surprise or newly-discovered evidence, and should not be granted unless on the whole injury has resulted and a new trial will probably change the result (Powell agt. Jones, 42 Barb., 24; Blake agt. Howe, 15 Am. Dec., 681; Darbee agt. Elwood, 2 Hun, 599).

V. If the application to set aside is to be regarded in the