The claim is for the damages which the wife and children of Christopher Smith have suffered through his death. The state is charged with having caused his death by its negligent maintenance of a bridge over the Erie canal. There have been two trials. The first, before the Court of Claims, resulted in a determination in favor of the state. The Appellate Division reversed that determination, and ordered another hearing (151 App. Div. 811). The second trial was before the newly constituted Board of Claims. The evidence was heard by Commissioner Luce, the chairman of the board, and Commissioners Gardner and MacDonald. After the case had been submitted for decision, Commissioner Luce resigned, and the Hon. John J. Rooney was appointed in his place. Commissioner Rooney had not heard the witnesses, but he participated in the decision. Indeed, so far as the record shows, he was the only commissioner that had anything to do with it. The record contains a document which is styled a decision. It embodies findings of fact and conclusions of law, which in each instance are followed by the word "found," and the initials "J.J.R." They are not otherwise authenticated. The decision is not subscribed either by Commissioner Rooney or by any of his associates. A second document in the record is styled an altered decision. It is the same as the first decision, except that it adds interest on the damages from the time of death. It bears the same initials, and is not otherwise authenticated. On the strength of its mandate, a judgment was entered by the clerk of the *Page 143 Board of Claims, which the Appellate Division has affirmed.
The decision is not in the form essential to the entry of a judgment. It is not authenticated by the official signatures of the members of the Board of Claims. It has no other evidence of genuineness than the initials of one of the commissioners. We have held that a referee's decision is invalid when authenticated only by his initials. (Smith v. Geiger, 202 N.Y. 306.) We think the same rule is applicable to the decisions of the Board of Claims. Property rights of great value may be affected by its judgments. We have reason to expect that its decisions shall be authenticated with a measure of formality corresponding to their importance. We have a right to know to what extent the findings express the individual views of a single commissioner, and to what extent the judgment of the board itself. Every decision, therefore, should be signed in full, either with the individual names of a majority of the commissioners, or in the name of the board by the hand of the chairman.
In the case at bar, we are dealing, however, with something more than an informality in the manner of the signature. The initials of the one commissioner who assumed to pass upon the findings are those of Mr. Rooney, who had no authority to decide the case at all. He did not become a member of the board until the evidence had been heard and the case submitted. We think he was not at liberty to take any part in the decision. His right to do so is challenged in the state's notice of appeal. (Code Civ. Pro. section 276.) The statute provides that, except as otherwise provided by the rules of the board, its practice shall be the same as that of the Supreme Court. (Code Civ. Pro. section 265.) That the practice in the Supreme Court gives a litigant the right to have his case determined by the same judge who heard the testimony, is certain. (Williamson v. Randolph, 111 App. Div. 539;185 N.Y. 603.) Indeed, the right is so *Page 144 fundamental that it is secured, at least in cases in the Supreme Court, by the constitution of the state. (Williamson v.Randolph, supra.) Article 6, section 3, of the constitution provides that "the testimony in equity cases shall be taken in like manner as in cases at law." The same principle of procedure is fortified by statute. By section 22 of the Judiciary Law, Cons. Laws, ch. 30, (formerly section 46 of the Code of Civil Procedure) it is provided that "a judge, other than a judge of the Court of Appeals, or of the Appellate Division of the Supreme Court, shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present or sitting therein as a judge." (See also: Code Civ. Pro., section 3343, subd. 3.) Whether the Board of Claims has the power to provide by its rules that a commissioner who has taken no part in the hearing may join in the decision, is a question not now before us. The board is not in the strict sense a court (People ex rel. Swift v. Luce, 204 N.Y. 478), but its functions are judicial; and the requirement that witnesses shall be seen and heard by the judicial officer who is to weigh their testimony has been proved by experience to be a means so important for the ascertainment of truth as to entitle us to assume that it will not be lightly abandoned. The rules of the board evince no intent to depart from this established mode of trial, but on the contrary adopt the practice in the Supreme Court except as otherwise specially provided (Rule 1). Until a different rule has been promulgated, it is that practice which must be followed. (Ostrander v. State, 192 N.Y. 415, 419;Spencer v. State, 187 N.Y. 484.) The conclusion, therefore, is that those commissioners who heard the witnesses and those only, should have joined in the decision.
This case has been twice tried, and there would be hardship if it were tried again. We think the hardship may be avoided. The case is in the position of having *Page 145 been tried but not decided. (Smith v. Geiger, supra;Ventimiglia v. Eichner, 213 N.Y. 147.) Two of the commissioners that heard it are yet in office, and the statute provides (Code Civ. Pr., section 263), that "two commissioners shall constitute a quorum for the transaction of business." We do not assume to instruct them what the decision shall be. They are free, until a decision has been rendered, to exercise their independent judgment. The duty of deciding the case has never been discharged, and it rests with them to-day.
The judgment should be reversed, without costs to either party, and the case remitted to the Board of Claims for decision by the commissioners qualified to act.