This is an appeal from an order of the . special term confirming the report of the commissioners of estimate and assessment. An objection is takpn that such a proceeding, when confirmed by a special term, is final, and that no appeal will lie to the general term. There have been such decisions made by former general terms. In the Bowery Extension case, (2 Abb. 368,) it was held that an appeal would not lie to the general term, although the judge admitted the language of the act of 1854 to be broad enough to cover the case of a special proceeding; because the statute made the order of confirmation final and conclusive. •
So in The Mayor v. Erben, (38 N. Y. 311,) the Court of Appeals held that the jurisdiction is confined to the Supreme Court, and the decision is not reviewable in the Court of Appeals. The judge adds that “ it is subject to an appeal to the special term of the Supreme Court, and no other judge, jury, court or referee has the slightest authority to examine into the matter.” It is proper here to remark, that when the act under which these proceedings were taken was passed, there was no special term of the Supreme Court, and that the act of 1813 (2 R. S. 411) directs the report to be made to the Supreme Court. Hothing in . it is said of the special term; nor is there anything in the statute which contemplates any other action, except that of a full court.
In the Matter of Canal and Walker streets, (12 N. Y. 411,) *46the Court of Appeals held that the appellant having heen heard before the special and general terms of the Supreme Court, were within the provisions of the act of 1854, in regard to special proceedings, and were entitled to a hearing in the Court of Appeals, were it not for the provision which made the decision of the Supreme Court final.
In the Matter of Seventy-sixth street, (12 Abl. 317,) the same decision was referred to, at special term. In that case, however, the right to appeal was only doubted because of the previous decision; and it was added that the decision in the Bowery case was conclusive on a special term, pntil the decision should be reviewed at general term. The act of 1854 was undoubtedly broad enough to include these proceedings, and this was conceded by Judge Hunt, in 12 N. Y. 411. But whatever view may have been taken of these proceedings, heretofore, the late decision of the Court of Appeals, in the Rensselaer and Saratoga R. R. Co. v. Davis, (43 N. Y. 137,) has a strong bearing upon the question of appealability of the order of confirmation.
The general railroad act (Laws of 1850, ch. 140) provided for taking lands for a railroad on similar proceedings, to be submitted to the Supreme Court, and after a second review in the court, makes the decision of the court final and conclusive between the parties. This act was passed before the act of 1854, providing for a review of special proceedings.
In 1 Kernan, 276, the Court of Appeals held that such proceedings were final in the Supreme Court, and that an appeal would not lie to the Court of Appeals. But in the case of the Rensselaer and Saratoga R. R. Co. v. Davis, that court has lately decided that such an appeal will lie. The court say the order appointing the commissioners is a special proceeding, from which an appeal to the general term lies, under chapter 270 of the laws of 1854, and it is a final order affecting a substantial right, made in a special *47proceeding. And I cannot but conclude that the Court of Appeals intend to hold such proceedings to be appealable under the act of 1854. But whether the same is or is not ' appealable to ther Court of Appeals, it seems to me that the Supreme Court, in general term, has the inherent right to review any proceedings in the court, where the power is placed generally in the Supreme Court, and is not by statute confined to .the special term. If reviewed by the general term, it is still the act of the Supreme Court; and until finally.disposed of, the proceeding is before the Supreme Court, and within the provision of the statutes which make the decision of the Supreme Court final.
I am of the opinion, therefore, that the cases holding ■ .that an .appeal does not. lie to the Supreme Court in general term, should be overruled, and the appeal sustained. Where an amount of property, exceeding five million of dollars, is taken from the owners on a valuation made by commissioners, it seems hard to deny them the right to review the legal questions which arise on the decision of a single justice, unless expressly forbidden.
There are various objections made to this report. It is unnecessary to notice any, except that made to the order referring it back to the commissioners to correct their report, in regard to the streets which had been closed. The first report was erroneous in not allowing the value of such streets. In the order referring it back, the value was estimated by the court, and the commissioners were ordered to revise and correct their report, by allowing the amounts mentioned in the order, and to file their corrected report at a day mentioned therein.
The order referring the report back for revision and correction, was proper, and such order might be repeated so long as the commissioners erred in the rules by which they were governed.
The power to estimate the loss and damage is given, by the act of 1813, to the commissioners, solely, and when *48the report is sent back for revisal and correction, it is for the commissioners to revise and correct it; and any new report may be referred back to them, as often as right and justice shall'require, .until a report shall be made which the court shall confirm.
Ho authority is given to the court to make such estimate of damages. If any such power existed in the court, there would be no need of referring it back to the commissioners, but the court could at once direct such allowances to be made. ■
Besides, the commissioners have not made any proper report on such order referring it back to them. In their report, they say the act is not the result of their deliberation or judgment; that they make the report in obedience to the order of the court. Such a report should not have been received from them.
When the case was* sent back to the commissioners, they should be governed by the law as laid down by the court; and it was not becoming in the commissioners to say they believed they had adopted the proper rule in the first instance, in opposition to the opinion expressed by the court.
The court held their first report erroneous, and they should have corrected it on the principles laid down by this court; but the fixing the valuation of the land was within the peculiar province of the commissioners. It may be doubted whether, in ordinary cases, the court should - interfere as to the actual valuation, unless it appears some legal principle has been violated.
For these reasons, we think the order appealed from must be set aside.
It is to be regretted that a new report cannot at once be made by the present commissioners; but as ‘two of them are away, and cannot act in the matter, it will be necessary to send the case to new commissioners. These will be named on settlement of the order.
*49[First Department, Generar Term, at New York, November 7, 1871.