App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. refusal of the justice to admit in evidence the complaint in an action of Bush against the present defendant was not error. There was no plea of payment in the defendant's answer, and that action was to recover, not the price of the material here sought to be obtained, but the value of the labor performed by Bush in making the repairs which he had agreed to furnish without charge on the understanding that he was to continue as lessee of the building which he had thus repaired. The issues in that action, therefore, were not material to the one on trial, and could in no way be binding on the present plaintiff, nor a bar to his recovery. Nor, as claimed, was the complaint material as impeaching the testimony of a witness, for the plaintiff in that action was not sworn as a witness on the present trial. These were the only rulings invoked to sustain the reversal. They being correct there was nothing which permitted the County Court to reverse the judgment of the justice. The judgment and order of the County Court should be reversed and the judgment of the justice affirmed, with costs in this court and in the County Court. All concurred. Judgment and order of the County Court reversed and that of the justice affirmed, with costs to the appellant in this court and in the County Court. In the Matter of the Application of the Town OF GUILFORD to Acquire Title to Real Property in Said Town, Owned by GEORGE BRADBURY, for a Public Highway. GEORGE BRADBURY and WEALTHA BRADBURY, Appellants; TowN OF GUILFORD, Respondent. Condemnation of land — review of a report of commissioners by the Appellate Division - the Special Term cannot receive affidavits as to value--when affidavits may be read the commissioners are not controlled by technical rules. An order made at Special Term, setting aside the report of commissioners of appraisal appointed in a condemnation proceeding, and ordering a rehearing before the same commissioners unless the defendants would stipulate to reduce the award, is appealable to the Appellate Division notwithstanding the peculiar provisions of sections 3371 and 3375 of the Code of Civil Procedure. THIRD DEPARtment, June TERM, 1903. [Vol. 85. If the Special Term deems the award excessive, it should set the report aside, but it has no power to modify the award for such a cause. The Special Term has no power to receive affidavits tending to show that the award was excessive. Semble, that it is only where some of the commissioners are alleged to have been guilty of misconduct or not to be disinterested, that affidavits may be read upon a motion to confirm the report. The findings of the commissioners will not be disturbed unless it is apparent that injustice has been done or that they have overlooked some material feature of the case or proceeded upon an erroneous principle or been influenced by hearsay or passion. In reaching their conclusion as to the value of a given piece of property, the commissioners are guided by their own judgment and experience, rather than by the opinions of witnesses, and are untrammeled by technical rules of evidence and unrestricted as to their sources of information. APPEAL by George Bradbury and another from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chenango on the 23d day of January, 1903, setting aside the report of commissioners appointed in condemnation proceedings and ordering a rehearing before the same commissioners, unless the defendants, appellants, stipulate to reduce the award made herein to the sum of $350, on the ground that the award was excessive. Wordsworth B. Matterson, for the appellants. Hubert L. Brown, for the respondent. HOUGHTON, J.: The defendants against whom these condemnation proceedings were prosecuted moved at Special Term for an order confirming the report of the commissioners in their favor. On the coming on of the motion there were presented to the court on behalf of the town, and allowed to be read against the objection of the defendants, twenty odd affidavits expressing opinions that the award was excessive, and giving the estimates of the affiants as to what the award ought to have been. The Special Term ordered that the report of the commissioners be set aside and a rehearing had before the same commissioners, unless the defendants stipulated to reduce the award made at $510 to $350, on the ground that the award was excessive. App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. Objection is made that such an order in condemnation proceedings is not appealable to this court. In the case of Manhattan Railway Co. v. O'Sullivan (6 App. Div. 572) the authorities, upon the power of the appellate court to review the order of the Special Term setting aside the report of commissioners in condemnation proceedings, are collated and discussed, and the conclusion reached that such an order was appealable, notwithstanding the peculiar provisions of sections 3371 and 3375 of the Code of Civil Procedure. The power of the court was deemed to be inherent to review, where a substantial right had been invaded, although not especially conferred by the Condemnation Law. This decision was subsequently affirmed by the Court of Appeals on the opinion of the court below. (Manhattan Railway Co. v. O'Sullivan, 150 N. Y. 569.) The Special Term could not modify the award of the commissioners. Section 3371 of the Code provides that in condemnation proceedings the court may confirm the report or may set it aside for irregularity or upon the ground that the award is excessive or insufficient; but nowhere is it given the power to modify it. The law requires that the award shall be made, not by the court, but by a commission of three disinterested freeholders appointed by the court. If the court deemed the award excessive it should have set it aside. (Matter of Central New York Tel. Co., 36 App. Div. 553.) It was not proper for the court to allow the party against whom the report was made to read affidavits impeaching the report. A motion to confirm or set aside is not a rehearing upon the merits of the matter on which additional proof can be given by either party. It is only where some of the commissioners are alleged to have been guilty of some misconduct or not to be disinterested that affidavits may be read upon those questions on an application to confirm the report. (Matter of Terminal Railway, 16 App. Div. 515.) The defendants declined to stipulate to reduce the award to the amount provided in the order, and the order in legal effect is one setting aside the award. It becomes our duty to determine whether or not the Special Term should have confirmed the report of the commissioners, or whether the final result should be the sending of APP. DIV.-VOL. LXXXV. 14 THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. the matter back to the same commissioners or to new commissioners to be appointed by the court. (Manhattan Railway Co. v. O'Sullivan, 6 App. Div. 572.) We see no reason why the award of the commissioners should not be confirmed. The defendants' premises lay adjacent to the railroad and to a village. The petition of the town on the appointment of the commissioners shows that the purpose of laying out the highway through the defendants' lands was to consolidate two highways, which crossed the railroad at grade, into one undercrossing. It does not appear how much excavation was necessary for the undercrossing of the highway laid out through defendants' lands, but the commissioners viewed the premises and saw the situation. The road went diagonally through the defendants' lands, and, as some of the witnesses say, without the highway a street could have been laid through the center and lots sold off from both sides; whereas, as cut by the highway, the lands were greatly injured. By agreement four witnesses, as to value, were sworn upon each side. Some of the witnesses sworn for the defendants put the difference in value as high as $600; and the witnesses for the plaintiff fix the difference from nothing to $150. Some of the witnesses took into consideration the fact that fences would have to be maintained upon the new highway, and others did not. The commissioners do not appear to have adopted any incorrect principle in determining the value of the property condemned, and for aught that appears they were men of character and intelligence. They were selected by a justice of this court from his own county of Broome, and were, therefore, not residents of the county of Chenango in which the town of Guilford is, and were, presumably, not influenced by any local prejudice or bias. Although only about an acre and a half of a ten-acre tract was taken by the road, and a three-cornered piece of land, which was conceded to be worthless, yet the commission thought, after viewing the premises and hearing the witnesses, that the damage was $500. The practice in cases of this character is not to disturb the findings of the commissioners, unless it is apparent that injustice has been done, or that they have overlooked some material feature of the case, or proceeded upon an erroneous principle, or been influenced by hearsay or passion. And in reaching their conclusion App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. as to the value of a given piece of property, they are guided by their own judgment and experience, rather than by the opinion of witnesses, and are untrammeled by technical rules of evidence and unrestricted as to their sources of information. (City of Syracuse v. Stacey, No. 1, 45 App. Div. 249; Manhattan Railway Co. v. O'Sullivan, 6 id. 572; Village of Port Henry v. Kidder, 39 id. 640; Matter of Manhattan Railway Co. v. Comstock, 74 id. 341.) There is nothing in the record showing that the award is excessive, and it is by the record alone that the court must be guided. The order appealed from should be reversed, with ten dollars costs and disbursements, and the report of the commissioners confirmed. All concurred; SMITH, J., in result. Order reversed, with ten dollars costs and disbursements, and report of commissioners confirmed. THE PEOPLE OF THE STATE OF NEW YORK ex rel. MUTUAL TRUST COMPANY OF WESTCHESTER COUNTY, Relator, v. NATHAN L. MILLER, as Comptroller of the State of New York, Respondent. Franchise tax-it is payable by a corporation which has been in business only six days before the close of the fiscal year. Under section 187a of the Tax Law providing, "Every trust company incorporated, organized or formed under, by or pursuant to a law of this State * * * shall pay to the State annually for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity, an annual tax which shall be equal to one per centum on the amount of its capital stock, surplus and undivided profits," a trust company in existence at the close of the fiscal year must pay the full tax imposed thereby, notwithstanding that it has been in business only six days prior to the close of such fiscal year. CERTIORARI issued out of the Supreme Court and attested on the 1st day of May, 1902, directed to Nathan L. Miller, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the revision and readjustment of the |