People ex rel. Freer v. Canal Appraisers

20 N.Y. Sup. Ct. 64

• Court: New York Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinions

LEARNED, P. J.:

Tbe Canal Appraisers constitute a tribunal to decide on certain matters between the State and claimants. They passed upon a claim of tbe relator. He appealed from their decision to the canal board. On such appeal it is tbe duty of tbe appraisers to make a return to tbe canal board. They refuse to do this. Their reasons are two: First, that tbe appeal was not taken in time. Second, that tbe parties, that is, tbe people and tbe relator, have settled tbe claim.

Now it appears to us that these are questions properly to be decided by tbe appellate tribunal, viz., tbe canal board. It would be unreasonable if tbe inferior tribunal could deprive tbe superior tribunal of tbe right to review, by deciding that tbe appeal was not taken in time, or that tbe cause bad been settled. For instance: an appeal lies from this court to tbe Court of Appeals; would it be proper for a clerk of this court to refuse to make a return, after a notice of appeal bad been served, on tbe ground that it bad not been served in time, or that tbe parties bad settled ? Clearly not. Those would be matters for tbe Court of Appeals to decide in that case. They would have to pass upon their jurisdiction of tbe case. And so in this case, it is not for tbe Canal Appraisers or their clerk to decide that tbe right of appeal is gone. That must be decided by tbe canal board.

But it will be said that it is for this court to decide these questions on this motion. "We think not. Tbe question is, what ought tbe canal appraisers to have done? If they ought to have made tbe return for tbe reason that it did not be with them to decide tbe questions above mentioned, then we have nothing to do with those questions on this motion. We ought not on this motion to pass on questions which are to be decided by tbe canal board. Whether or not those questions may eventually come to us, after a decision by the canal board, we need not now inquire. The question now is, what, under the facts before them, was the duty of the Canal Appraisers ? They certainly had not the right to pass on the fact of the alleged settlement. It is true that a mandamus could not issue in a doubtful case. But what is in doubt here? Not the question whether the appeal is in time, nor whether the parties have settled. Those are matters with which we have nothing to do, because the canal appraisers had nothing to do with them. The only question is whether, when a notice of appeal had been served on the inferior tribunal, it ought to send the papers to the appellate tribunal, or ought itself to decide whether the appeal is well taken, and if it should decide in the negative ought to deprive the appellate tribunal of the opportunity of passing on the question.

Of course there might possibly be cases where the appeal was so utterly improper, or so clearly barred, that in an exercise of discretion we might refuse a manda/irms, leaving the party to his common law action. But we do not think that this is such a case. If an issue were raised and tried in this proceeding, as we think, the question would be, not whether the appeal was too late, or whether the claim was settled, but whether the canal appraisers were authorized to try those facts and to refuse a return if they found the facts against the relator.

."We do not see that any harm can be done if the Canal Appraisers make the return. The canal board, if they think that the appeal is taken too late, or that the claim is barred by settlement, can so decide. Whatever right of review of their decision is given by law, directly or indirectly, can then be had.

We think the order should be affirmed, with ten dollars costs and disbursements.