The order appealed from must be reversed. The canal appraisers exceeded the jurisdiction *Page 244 conferred upon them by chapter 520 of Laws of 1868. That empowered them to hear and determine claims of Voorhees for damages sustained by the appropriation of land for the deposit of shale and stone. They did entertain, determine, and make an award, for the destruction by fire of fence, and rails and timber. There is nothing in the testimony taken by them to show that this was a damage from the appropriation of the land; clearly it was not. So it did not fall within the scope of the authority given to them by the act.
The judgment in the action of The People v. Wasson, (64 N Y, 167,) does not conclude the defendant. The opinion rendered in this court is the reason of that judgment. One of the grounds there taken is, that the auditor may make all needful defence in such an application as this.
Nor is it an answer to the lack of jurisdiction to say that the legislature has, since the making of the award, made appropriations of money to pay awards in general. It does not appear that this award was in the intention of the legislature, or that if all the facts had been made known, it would have provided for the payment of it.
The orders of the Special and General Terms should be reversed.
RAPALLO, ANDREWS, MILLER and EARL, J.J., concur.
ALLEN and FOLGER, J.J., dissented, on the ground that as the attorney-general had made no point either in his printed brief or in oral argument, that there was fraud or collusion, the court would not raise it; and that, whether on question of jurisdiction or not, the appraisers had jurisdiction to hear and determine the matter of damages arising from the appropriation, and to decide what were and what were not such damages; and that if it be conceded that the destruction by fire was not a proper item of damage to be allowed, still the appraisers had jurisdiction to decide, and if the decision was wrong, the remedy was by appeal to the canal board. They cited Miller v. Brinkerhoff (4 Denio, 118); "a mistake concerning the just weight and importance *Page 245 of evidence, only makes the act erroneous, and it will stand good until reversed."
They also thought that Roderigas v. East River SavingsInstitution (63 N.Y., 460), was inconsistent with the conclusion reached by the majority of the court.
CHURCH, Ch. J., did not vote.
Orders reversed.