(dissenting):
It has already been determined in these proceedings by the decision of the highest court in the State, after a full and deliberate consideration of the question, that the commissioners appointed by this court on the stipulation of the parties as contained in their written agreement, cannot be removed without their consent, except for a cause sufficient in law for the termination of the contract. The discussion on that question is over, and the decision is adverse to the views and argument of the learned counsel for the respondent. It is the duty of this court to recognize and follow the legal proposition involved in that determination. (In re N. Y., L. and W. R. Co., 98 N. Y., 447.)
The parties to the agreement for- the sale of the lands made it one of the terms of their agreement that the consideration to be paid therefor by the company should be determined by the individuals who were named as the commissioners in the order of their appointment. If for any cause occurring since their appointment they have become disqualified to act iu the capacity conferred upon them by the contract, then it is obvious, and it needs no argument to prove, that neither party is under any legal obligation to observe and perform any of the provisions of the agreement. If the order appealed from is allowed to stand, the necessary effect will be to terminate the agreement and relieve both parties from its performance.
*141None of tbe grounds upon wbicb the revocation is based existed at the time the order was granted, nor is it pretended that either party or the court was deceived, misled or defrauded in consenting to the appointment of the persons named as commissioners, or as to the form in which the order was entered. The contract contemplated that the court would give its consent to the appointment of the commissioners, and as this has been done in the precise manner marked out in the agreement, it is obviously fair and just, with a view to the full protection of the rights of both parties, that the order should not be revoked and set aside, unless at the same time and in the same proceeding, and by a court of competent jurisdiction, the contract for the sale of the premises is also declared to be at an end and both parties relieved from all their obligations created thereby. It would be manifestly unreasonable for the court to declare that the contract remains in full force and binding on the parties after they had been deprived of the means .mutually adopted for the purpose of ascertaining the consideration which the company -should pay to-Mrs. Bennett for the property which is the subject of the contract.. In no other way than by an appraisal by the persons named can the value of the property be '.determined so as to enable the parties to carry out the terms of their .executory agreement. In this connection we may quote freely from the opinion of Mr. Justice Earl on this point, which is as follows: “ Mrs. Bennett did not agree to convey her property for a compensation to be fixed by any three persons to be appointed by the court, but for a compensation to be fixed by the three persons named under the precise conditions specified in the agreement, and it would certainly be contrary to the understanding of the parties that she should be compelled to part with the property for a compensation to be fixed in any other way. It is true that all rights of appeal given by law were reserved to either party, but we cannot infer from that language that it was expected by either party that the commissioners should be changed, that would defeat the whole scheme of the arrangement between them. If the court could upon appeal change the commissioners very little was gained in the first instance by naming the commissioners who were to make the appraisal. * * * Here the agreement of the parties was a factor which the court was -bound to recognize and give proper weight and significance. What*142ever in that agreement bound the parties bound it (the Supreme-Court), and it did not err in holding that it could not, in violation of the agreement of the parties, appoint new commissioners. The railroad company cannot claim the benefit of a part of the agreement and repudiate the rest. If it desires to change the commissioners-it must in some way get rid of the entire agreement.”
In our consideration of the question thus presented, the court-at Special Term did not possess the power in the summary manner-adopted, to vacate the order of appointment. It was but a way adopted for the purpose of securing the removal of the commissioners, who had become objectionable to one of the parties. As the order-was entered with the consent of the parties, and they, by their-agreement, conferred upon the commissioners powers and duties-which they would not possess under a statutory appointment, the-order is in its nature and effect final and conclusive on the questions-which it determines.
It does not follow from these views, nor do I intend to assert that the court is without power to control the action of the commissioners and set aside their report, when one is made, for fraud, irregularity or mistake. It belongs to the essential and inherent powers of this court to exercise an efficient and supervising control-over every proceeding pending therein, to protect every suitor from fraud and injustice, and it will protect itself from being made the-instrument of wrong and compel its subordinate officers receiving-appointment from its hands to observe the law involved in the controversy between the parties. (In re N. Y. C. and H. R. R. R. Co., 64 N. Y., 60; In re P. P. and C. I. R. Co., 85 id., 489 Baldwin v. Mayor, 42 Barb., 549.)
The question which we now have before us is not as to the-power of this court to supervise the proceedings which may be had under the order, and to correct error in procedure on the-part of the commissioners, and set aside their report for fraud and misconduct; but the real question is as to the power of the court" to vacate its previous judgment entered on the agreement of the-parties. Where the court has jurisdiction over the subject-matter-in dispute, that is, in such a case the consent of the parties may authorize the court to render a valid judgment in accordance with.. them agreement, and the parties will be bound thereby, although in, *143a contested case the court would not render such a judgment on the same state of facts. A judgment thus entered upon the consent of the parties given in open court must, in all subsequent proceedings, be regarded by the court as sacred and conclusive in all respects as if the judgment had in every particular been specially directed by the court on a state of facts determined by the-court upon the evidence produced before it, sufficient in the law to authorize the judgment entered. (Bank of Monroe v. Widner, 11 Paige, 529 ; Hunt v. Hunt, 72 N. Y., 217; Fletcher v. Holmes, 25 Ind., 458; Stratton v. Stratton [Me.], 1 East. Pep., 579; The Monongahela Nav. Co. v. Fenlon, 4 Wats. & Searg., 205.)
The power of the court to vacate its own judgment for fraud* mistake, irregularity or illegality is unquestioned. There is no pretense in this case that any fraud or deceit was practiced on either party for the purpose of procuring their consent to the entry of the order, and no irregularity or mistake in the form or entry of the same is suggested. The alleged misconduct of the commissioners^ which was recognized by the Special Term as disqualifying them and justifying their removal, occurred after their appointment and since the first hearing. If the commissioners, or either of them, have been guilty of corruption or misconduct, or for any other cause have become disqualified to act, a court of equity possesses the undoubted power to intervene, upon the application of an aggrieved party in a proper suit, and declare the contract at an end for the-reason that it has become impossible to carry the same into effect according to the intention of the parties; and such a result would, in and of itself, vacate the order.'
The clause in the contract agreeing that the consideration to be paid for the premises should be determined by the commissioners-may be considered as being in the nature of an arbitration. Execu-tory agreements of this character are often revoked by operation of law. Such a result occurs from the legal effect and necessary consequence of some intervening event, either providential or caused by the act of one of the parties, such as the death or insanity of the arbitrator, or by his becoming interested in the subject matter of the litigation or by his fraudulent conduct or misbehavior. The law assumes that parties in making such contracts .enter into the *144same having in mind such contingencies, and when they do happen as consenting that the agreement may be canceled at the instance of either party. (Morse on Arbitration and Awards, 233, 235; Potter v. Sterrett, 24 Pa. St., 411; Suttons v. Tyrrell, 10 Vt., 91; Beddow v. Beddow, Law Rep., 9 Oh. Div., 93; Malmesbury Railroad v. Budd, 2 Ch. Div., 113.)
In the English cases just cited the disqualifying act occurred after the arbitrators were appointed, and they were removed by the decree of a court of equity in a suit instituted for that purpose and before they had made any award disposing of the questions submitted to their consideration.
The rescission of a contract for adequate cause occurring before.' qr after its execution can only be decreed by a court of equity, and such relief cannot be obtained in a court of law. It is not contended by the respondent that the contract in question can be disturbed in ■ whole or in part by any relief which this court has power to grant in these proceedings, and I have reached the conclusion that as the order for the appointment of the commissioners has its foundation in the agreement and was entered on the consent of the parties it is final as between the parties thereto, and can be vacated and annulled only by a suit instituted for that purpose in a court of. equity.
I have examined all the other cases which have been brought to my attention, where courts have removed umpires and arbitrators for corruption and for other causes, and I find that the relief secured was in a court of equity jurisdiction. In many instances where commissioners or arbitrators have been nominated by the court or selected with the consent of the parties, in statutory proceedings, they have been removed on motion on the application of an aggrieved party, but they are not in point on the question whether the court can interfere when the order appointing arbitrators or commissioners is based upon the agreement of the parties and founded upon a good and valid consideration as in the case before us.
The circumstance, to which an allusion has been made, that if the commissioners are not removed and they are permitted to proceed and maleo an award, it will be final and conclusive upon the parties, as no right of appeal is given from a second award, has been considered and I fail to perceive how it can make this case an exception *145to the general rule that questions of this character and gravity must be disposed of by action in a court possessing appropriate jurisdiction.
Order modified, as indicated in the opinion of Rjíadley, J., and as so modified affirmed.