I cannot concur in the conclusion reached by Judge VANN. Doubtless the court possessed the power to set aside the report of the commissioners for fraud, *Page 42 mistake or irregularity upon proof of their existence and upon a proper application made to the court for that purpose. There is nothing to indicate that this was doubted or questioned by the court below. No such application was made nor intended at the time even by the appellant. Although that claim was urged upon the argument, it was presented here for the first time. The motion was to set aside the report and appoint new commissioners, and was based upon the record, testimony and proceedings. It was barren of notice, claim or suggestion of fraud, mistake or irregularity. Manifestly, the application was upon the merits alone, and was so understood by the parties and the court alike. There is nowhere in the record the slightest indication of any other purpose. The order recites that the motion was to review the proceedings of the commissioners, thus showing that the court plainly understood that the application was merely to review their action upon the merits. With this understanding and without anything to suggest a different one, the court by its order held that inasmuch as the determination of the commissioners was adverse to the construction of the railroad it had no duty to perform and could neither confirm the report nor set it aside. In this it was plainly right. Unless it was to do an idle thing, it could not confirm the report as it would have no validity, it being only when the report was in favor of the railroad and confirmed that it was of any avail. It could not set it aside upon the merits, as that would be a plain and unwarranted interference with the prerogatives of the commissioners. Under these circumstances, to review or interfere with the action of the Appellate Division upon the assumption that it held that it had no power to set aside the report for fraud, mistake or irregularity, would be pre-eminently unfair to both the respondents and the court. It would involve a question not decided and impute to the court below a lack of knowledge or comprehension of its plainly understood powers that is past belief or even suspicion.
It is said that there may have been some irregularity in the proceedings which the court should have corrected, and that *Page 43 it ought to have looked into the record to see if it could by any possibility discover it. This involves a doctrine which to me is entirely novel. It was not the duty of the court to search for some undisclosed or imaginary irregularity that might be supposed to exist. If there was any, it was the duty of the appellant to present it to the court. This was not only required by common fairness, but the rules of the Supreme Court and the general practice which has existed for nearly a half century require that upon a motion based upon an irregularity the notice must specify the irregularity complained of. Where there is no such specification in the notice and the motion is denied, the court on appeal will presume that it was denied upon that ground. (Lewis v. Graham, 16 Abb. Pr. 126.)
No fair construction of the order appealed from admits of the supposition that the court held or intended to hold that it did not possess the inherent power to set aside the report of the commissioners for fraudulent, mistaken or irregular action, but a proper interpretation of it plainly shows that the court intended only to hold that it could not review the action of the commissioners by substituting its own views as to the merits of the application for those of the commissioners, because before the petitioner was entitled to the relief sought the commissioners must have reported in its favor, and their report must have been confirmed by the Appellate Division. As there was no such report, there was no basis upon which the Appellate Division could grant the application of the petitioner.
I think the order appealed from should be affirmed, with costs.
PARKER, Ch. J., GRAY, BARTLETT and WERNER, JJ., concur with VANN, J.; MARTIN, J., reads dissenting memorandum; CULLEN, J., not sitting.
Order reversed. *Page 44