. In -disposing of this appeal, we shall regard the proceedings on the part of the railroad company, to condemn the lands of Mr. Wolfe, as in all respects regular, from the time they were initiated, up to and including the delivery of the award by the commissioners.
The facts stated by Mr. Wolfe in his affidavit, read in opposition to the confirmation of the report, being wholly uncontradicted, the same tended to make a case, not to say more, excusing his default in not being present at the several meetings held .by the commissioners, prior to the final one, which convened on the tenth of November.
His appearance on that day, and submitting to an examination, should not be received as conclusive and binding upon him, as confirmatory of all prior proceedings had before the commissioners, and as placing him in a position that he cannot ask relief and be permitted to excuse his default in non-attendance upon the earlier and more important hearings had by the commissioners.
In the face of this áffidavit and the statements therein contained, which the petitioner admits to be true, by not disputing the same, it would be exceedingly harsh and unjust to hold as a rule of law, that he is now in no position to ask a favor from the court of the nature and character of the one solicited.
The learned judge was in error in holding that the court had not the power and authority at Special Term, on a proper application, to excuse the land owner’s default in presenting his proofs, and that it was the duty of the court, under the provisions of the seventeenth section of the general law, to confirm the report.
The provisions of that section were not intended to interfere with, or restrict the power of the court, in the exercise of its general jurisdiction, to relieve parties to the proceedings from defaults, mistakes and misapprehensions as to their rights and privileges, when timely and properly brought tq the attention of thq court. This *605court lias power by virtue of its inherent jurisdiction, sitting either at Special or General Term, to set aside the report of commissioners for good and sufficient reasons, and on timely application, made according to the rules and practice of the court.
All discussion and controversy over this question of power and authority, in this court, was brought to an end by the decisión of the Court of Appeals, In the Matter of the Application of the New York Central and Hudson River Railroad Company, to appraise certain lauds, and reported in 64 New York, 60.
If, upon the presentation of the report of the commissioners for confirmation, as provided in the seventeenth section of the Railroad Act, it appears that the proceedings have been regularly conducted in all respects, and no question of that character is raised, but the opposition to the confirmation is placed upon the ground that errors were committed by the commissioners in the receipt and rejection of evidence, or in the amount of compensation awarded; then it is the usual practice of the court, and such is the spirit of the section, to confirm the report and allow questions of that nature and character to be litigated on appeal.
We are of opinion that it was good and orderly practice for the land owner to ask for such relief a» he was entitled to, by way of securing a rehearing, on the application of the petitioner for a confirmation of the report.
So far as it is disclosed in this case, the first notice that the land owner had of the final action of the commissioners was on receiving notice of the application for a confirmation of their report.
The Special Term should have heard and disposed of the application for a rehearing upon its merits. That court had the power, if in its opinion a proper case was made, and it was error to deny the same for want of authority.
The order of confirmation is reversed, with leave to the petitioner to renew the motion for confirmation of report. Ten dollars costs and disbursements allowed the appellant.
Hardin, J., concurred ; Smith, P. J., taking no part.Order of confirmation reversed, with leave to the petitioner to renew its motion for confirmation at Special Term, with ten dollars costs and disbursements to the appellant.