#### Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo, for the Appointment of Commissioners to Ascertain the Compensation to be Paid to the Owners of and Parties Interested in Lands Claimed to be Injured by the Change of the Grade of Broadway, and Claimed to be Owned by Clinton K. DeGroat et al. Proceeding No. 89.

(Supreme Court, Erie Special Term,

September, 1910.)

Highways — Change of grade — Damages: Appraisal — Procedure: Commissioners— Qualifications; Duties; Official oaths: Award — Amount.

Commissioner® appointed to appraise the dam-ages to be paid for a change of grade of a street in the city of Buffalo should view the premises as a body and not individually, but viewing the premises individually is an irregularity, only and not a jurisdictional *error.*

The fact that one of the commissioners is not a freeholder of the city of Buffalo, as required by the statute, is an irregularity and not a jurisdictional defect; and an objection to his qualifications cannot be raised for the first time on the motion to confirm the commissioners’ report.

*24Nor will the fact that one of the commissioners is a nominal party to the proceeding, where he has, in fact, no interest in the award and was not a = necessary or proper party at the time of his appointment, invalidate the proceeding, where all the parties knew of his relations to it when he was appointed and fully ■acquiesced therein.

The failure of the commissioners to take'an oath “to ascertain ■and report the just compensation to he paid to the owners of, and parties interested in, the lands for taking the same or for injury thereto, to the best of their ability,” as required by the statute, although they were sworn to “ faithfully discharge the duties of the office of commissioner to the best of their ability,” is, however, fatal to the proceeding, where no waiver by the parties of the statutory oath appears.

An award in excess of the estimates of the city’s - witnesses should not he set aside as insufficient unless shown to be palpably unjust.

Motion to confirm report of commissioners of award.

Spencer Clinton, for grade crossing commissioners, for the motion.

Henry W. Killeen and Frank F. Williams, for certain land owners, opposed.

Pound, J.

Certain of the jirojJerty owners affected by this proceeding object to the confirmation of the report on the following grounds:

*First,*that the award of. taxes to the city or county was erroneous, uncertain and indefinite. The taxes proved amount to ten dollars and thirty-six cents against parcel Ho. 2, nothing against the other parcels represented by the obj eetors. The obj ect-ion is not substantial. The amount of taxes was properly proved. The taxes which were a lien on the land at the time the damage was done are a lien upon the award and should he deducted therefrom. Subsequent taims were liens upon the land as damaged only, but no obj ection was made to the introduction of the tax searches in evidence. It would seem that'the taxes of 1910 on parcel 2, amounting to three dollars and two cents, are not- a lien on the award and should not be deducted therefrom.

*25
      *Second,*that the commissioners did not view the premises as a body, but individually. This was an irregularity and not a jurisdictional error. The commissioners should, however, view the premises as a body. They act throughout as a body and not as individuals.

*Third,*that one of the commissioners was not a “freeholder of the City of Buffalo,” as required by the Grade Crossing Act (Laws of 1890, chap. 255, § 9). The obvious meaning of this requirement is that the commissioners shall hold title to real property *in the city of Buffalo*— not in Oklahoma or Siam. But this again is an irregularity and not a jurisdictional defect. The parties had a right to dispense with such qualifications by consent, and it is now too late to raise the objection. Matter of Baker, *173*N. Y. 249.

*Fourth,*that one of the commissioners is a nominal party to this proceeding. It is not claimed that he had any interest in the award or that he was a necessary or proper party at the time of his appointment. He was a “ disinterested freeholder.”

Section 46 of the Code of Civil Procedure (now section 15 of the Judiciary Law) disqualifies a judge to sit in a cause or matter in which he is a party; but this section does not apply to commissioners in condemnation proceedings. Matter of Ogden St., 6'3 Hun, 188. Unquestionably, an, interest in the award, however slight or remote, would disqualify the commissioner and be fatal to the award; but no bias, actual or implied, is shown here. All parties knew Mr. Horton’s relations to the proceeding when he was appointed and they fully acquiesced in such appointment. This objection also comes too late.

*Fifth,*that the commissioners did not take the oath required by the statute. They each took an oath “ to faithfully discharge the duties of the office of commissioner in the above entitled proceeding’ to the best of his ability.” The statute (§9, supm) requires the commissioners to take a further oath “to ascertain and report the just compensation to be paid to the owners of, and parties intested in, the lands for taking the same or for injury thereto, to the *26best of their ability.” To so ascertain and report is their sole duty as defined by the Grade Crossing Act (§9, *supra).*Having taken • oath *“*faithfully to discharge their duties,” the rest might seem to be superfluous, except for emphasis. But the commissioners should have taken the oath as required by the statute, and, not having done so, their proceedings were illegal. It was for the Legislature and not for the commissioners to fix the form of oath required. Merritt v. Village of Port Chester, 71 N. Y. 309. This irregularity might have been waived; but here there has been no waiver, no intentional abandonment, express or implied, of the right to have commissioners who had taken the statutory oath.

*Sixth,*that the award is inadequate. According to well settled principles governing these cases, this objection should, not prevail in the absence of evidence that the award is palpably unjust. Matter of Grade Crossing Commissioners, 52 App. Div. 122.

The awards complained of, while certainly not excessive, were in excess of the valuation given by the city’s witnesses and should not he disturbed, except for the irregularities'— particularly the fatal irregularity in regard to the oath of office — above indicated.

Although the Grade Crossing Act provides that the court *shall*confirm the report (§ 9, *supra),*I doubt not its power to set aside the award for error or irregularity. Matter of N. Y. C. & H. R. R. Co., 64 N. Y. 60; Matter of Daly, 189 id. 34.

Too much reliance should not be placed on implied waivers of irregularities in these proceedings.

The award is, therefore, set aside for irregularities and a rehearing before a new commission ordered.

Motion denied.