In the matter between the Mayor, Aldermen, and Commonalty of the city of New York, and the President and directors of the Manhattan Company

In the matter between the Mayor, Aldermen, and Commonalty of the city of New York, and the President and directors of the Manhattan Company. A judge cannot revoke his own warrant, appointing appraisers under the 5th sect, of the act incorporating the Manhattan Company. A freeholder in the city of New York is, under that section, incompetent to act as an appraiser of the damage done to the streets by laying the Manhattan pipes. Want of time and. place in a notice of preferring a petition is fatal. A rule nisi leaves the party at liberty to come in and oppose when the court is applied to for making it absolute. Whether Service of a notice on a cashier of a bank be -good, service, qu. This was an application to make, absolute a rule nisi, obtained last term, to confirm the report of William Pop-ham, Abijah Hammond, and Eichard Hatfield, three persons who, under the fifth section of the act incorporating the Manhattan Company, had been nominated and appointed by his honor Mr. Justice Kent, to estimate the damage done to the pavements of the streets of New York by the Manhattan Company, in laying down the pipes which convey water through the city. Harison, in support of the rule, read a petition from the Mayor, Aldermen and Commonalty of New York, stating, that all the streets and highways in the city are, by law, vested in them and their successors, and were so previous to the 2d of April, 1799. That the President- and Directors of the Manhattan Company, shortly after their incorporation, and without license from the petitioners, had dug, in several of the streets, trenches for laying the water pipes of the Company, and materially injured the pavements. That ineffectual endeavors had been used to bring the Company to an agreement with the petitioners, and, therefore, they prayed persons to be appointed to estimate, &c. He stated, also, from affidavits, that on the 6th of July last a copy of the above petition was served on the Manhattan Company, by delivering the same to their cashier; that this was previous to the delivery of it to Mr. Justice Kent for his warrant; (but how long previous the affidavit did not state;) that on the 12th day of the same month the warrant, appointing the three persons above named, was issued ; that on the 26th of the same July, a copy of the warrant *was served on the cashier of the [*508] Company, and, on the next day, a notice that the person so appointed would meet at 10 o’clok of the same day to proceed in the duties assigned to them. Hamilton, contra, insisted that, from the facts, as they appeared on the affidavits of the other side, it was manifest the notice of an application to appoint persons to estimate was imperfect; it specified neither time nor place, when and where the Company might attend to oppose the nomination of improper persons. That this was analogous to, and by the act intended as, a substitute for a trial by jury; that therefore, the same rights as would be had in that mode ought to be preserved in this, and of those rights that of challenge was one. He then read an affidavit by the President of the Manhattan Company, showing that Mr. Hammond was a very large freeholder in Hew York, and there had his principal residence; and, also, that the original cost of paving the places was only 3,525 dollars, though the damages which had been assessed, as a compensation for the injury, amounted to 6,881 dollars. From hence be contended that Hammond was an interested person, (though he might have acted perfectly conscientious,) as the houses of proprietors were assessed for the pavements opposite their lots, and the more was gotten from the Company the less would the freeholders be called on to pay. The notice, also, of attending the meeting of the persons appointed by the judge’s warrant, was of a piece with the rest; it was, as appeared by Mr. Remsen’s affidavit, served on him, as cashier of the Company, only ten minutes before the assessors were to assemble. In the next place, it might be a question how far any service was valid which was not served on the President himself, he being the head of ,the Company. It was also doubtful whether the judge had any jurisdiction; the act gives him authority only when the Company and the Corporation disagree; the petition did not state this, but that they did not agree. Harison, in reply. The act does not prescribe any time at which notice is to be given. It is evident, however, that there was no intention of surprise, as there were six days between the service of the petition and the [*509] ' judge’s warrant. *Supposing the analogy to trial by jury to be correct, still the Company were too late. The service of the petition was enough to set them on inquiry, and they have lain by till the whole business is finished, and then, because they think themselves aggrieved, they come forward. Were a party to be thug silent, and take the chance of a verdict, it would be too late for him to urge any challenge to a juror. The petition states that all endeavors to bring the Company to an agreement were ineffectual; whether this amounted to disagreeing, or only to not agreeing, and the distinction to be taken between them, he declined to argue. [MAJORITY — Per Curiam.] Per Curiam. The application is, to affirm the report of appraisers acting under the fifth section of the statute incorporating the Manhattan Company. The act directs, that “ in case of disagreement, &c. it shall be lawful for tho judges of the supreme court of this state, or any one of them, (not being an inhabitant of the said city,) upon the application of either party, to nominate and appoint three indifferent persons to view, examine and survey the said lands, &c. and to estimate the injury sustained as aforesaid, and to report thereupon without delay; and upon the coming in of such report, and the confirmation thereof by the said court, the Company shall pay the sum mentioned in the report,” &c. On the part of the Company, the first cause shown against confirming is, that the application to Mr. Justice Kent was made without due notice. The second, that one of the appraisers was interested, and, therefore, an improper person. The third, that the damages awarded are excessive. As to notice, it is not denied that it was necessary, though it is insisted that which was given was sufficient. The petition appears to have been served on the cashier, and contains neither time when, nor place where, the application would be made to the judge. The notice, then, is altogether irregular. It wants the necessary requisites of time and place to enable the opposite party to attend and object to the appointment of appraisers, On the second point, the affidavit of the President shows, that one of the persons nominated was interested; and this again proves the importance of notice, for had the [*510] Company appeared *they might have shown his interest, and hindered his appointment. This interest is not denied by the corporation; they merely urge that it is alleged at too late a period. As to the damages, an injury to the amount of 6,881 dollars is assessed on that which originally cost only 3,525 dollars. The corporation, it is true, say that the streets were much injured, but this ought to have been shown more satisfactorily, and is sufficient to send this matter for further investigation. A question, however, has been made, whether the Company can now avail themselves of these objections ? They must be at liberty so to do now, or they would be remediless. There was not any notice given them to attend before the judge; therefore, to him they could not state their objections. Nor could they have applied to the judge who granted the warrant, to make a further or other appointment, for under the words of the act, the judge cannot revoke his warrant. He, therefore, is functus officii. The only resource, then, is to this court They have no authority to interfere till this application is made to confirm, and then, the matter being before them, they may proceed on the objections taken. The report was returned on the last day of the last term, and from the manner in which the corporation have taken their rule, they seem to suppose it might now be opposed by showing cause. There can be. no ground, therefore, for imputing loches,' as the company have come forward at the earliest period they could, after the court was in possession of the cause by filing the report. But it is contended that the notice, though defective, was enough to put the Company on inquiry, and they ought to have applied to this court directly after service of the petition. The rule of practice in this court, as to defective notices, does not apply to this case. It is a special mode of proceeding under a particular act, and therefore, not within our regulations as to defaults. The court are of opinion that the report be set aside. “If the head be not warned, (notified,) the body is not.” Agreed, Bro. tit. Corporation, pl. 6 [DISSENT — Kent, J.] Kent, J. I dissent from this determination. The fact is, that the bank had notice of the petition, and of the allegations of that petition. The denial of notice goes only as to time and place. The first intimation they received was on the 6th of July, and the warrant was not issued till the 12th. *They then again, on the 26th, re- [*511] ■ ceived a further notice, and it is not till the 28th of November that the report is made. The bank remained .inactive, seeing the whole business progress, and, had its termination been favorable, they would have abided by the event; as they deem it otherwise, they now come to us. It is a rule of moral justice, that no man shall be permitted to speculate on his own delay. It is against all rules of practice, which require due diligence. If a party has a short notice of trial, it is enough to set him on inquiry ; and if he does not immediately come forward at the next term, we never set aside the verdict he has permitted to go against him. MUvers v. Macldan and Oelston, January term, 1800i The bank might have applied in the last term either to a judge or the court. Report set aside.