When the defendants against whom these condemnation proceedings were prosecuted, applied to the Special Term for an order confirming the report made by two of the commissioners, the court made the order in the following terms: “ It is ordered and
adjudged that said report be in all things confirmed, except as to the award of damages, and in that regard, that said award be modified to the sum of thirteen dollars, the award made being deemed excessive.”
Such was the whole of the order, except that part allowing costs to the defendants against the plaintiff. '
The defendants have appealed from so much of that order as modified the report by reducing the amount of the award to thirteen dollars.
The plaintiff has appealed from that part of the order ■ allowing costs against it.
It is clear that the court had no authority to modify the report. Section 3311 of the Code of Civil Procedure (the Condemnation Law) provides that the court may confirm the report, or may set it aside for irregularity, etc., or upon the ground that' the award is *555excessive or insufficient, but nowhere is it given the power to modify it. Both the Constitution and. the statute require that the award shall be made, not by the court, but by a commission of three freeholders appointed by the court. When, therefore, the court deemed the award “ excessive,” it should have set aside the report.
The court declined to confirm the report, so far as it awarded damages, and clearly it had no right to confirm it as modified. We must, therefore, upon this appeal of the defendants, reverse the confirmation of the report as modified; and, inasmuch as that leaves-the report wholly unconfirmed, on the ground that the award was excessive, it must be set aside and a rehearing must be had before the same or new commissioners. Such is the order which the Special Term should have made. (See Code, § 3371.) And such order may now be made by this court. (Code, § 3377.)
The order being erroneous, as above stated, the award of costs against the plaintiff was equally unwarranted.
The whole order, therefore, is reversed, and a rehearing is ordered before new commissioners to be appointed by the court at Special Term, upon notice duly given.
No costs on this appeal are allowed to either party.
All concurred.
Order reversed-, without costs to either party.