Matter of the New York, Lackawanna and Western Railway Co. why, after having so made the order, may it not set it aside? If Messrs. Dunbar and Clark had appeared in court when the motion was made for their appointment and announced that if appointed they would follow their own notions as to the admission of evidence and would not be guided by the decision of the court in the case, I assume the court would have refused to make the order it did. Having now learned that the commissioners so appointed do assume that position, is it not in the power of the court to cancel its order? In the Matter of the Application of the Prospect Park and Coney Island Railroad Company to acquire title to land (85 N. Y., 496) the court says: "If the landowners in such case claimed that there was any irregularity, fraud or mistake in the proceedings of the commissioners, or back of such proceedings, their remedy is by motion to set the award and proceedings aside, and not by appeal from the award or the order confirming the same." Judge FOLGER says, In the Matter of the Application of The New York Central and Hudson River Railroad Company for the appointment of commissioners to appraise lands of Alexander Cunningham and others (64 N. Y., 64): "The court had the power to revoke the appointment of the first commissioners for good cause shown; and it also had the power to set aside the confirmation of their report, for good cause shown, and to reject it." Does the contract stand in the way of granting this order? It is contended by the landowner that changes have occurred in the property and its surroundings since the making of this contract, and that losses will follow to her if the order appointing the commissioners be vacated. It is not claimed that the possession of the owner in the property has been disturbed. The contract very carefully provides that no right or interest of Mrs. Bennett shall in any manner be interfered with or distributed until the entire purchase-price is paid. The prosecution of the suits therein mentioned is not interfered with. The owner is at liberty, so far as the contract provides, VOL. II 30 Matter of the New York, Lackawanna and Western Railway Co. to prosecute her actions with diligence. If she has parted with anything or been less diligent, it is not because she was bound so to do by the contract. If the refusal of the commissioners to follow a general term decision be misconduct, and the cause for vacating the order appointing them, and vacating the order destroys the contract and deprives the landowner of the benefit of its provisions, she is a party to the causes producing that result. The admission of the illegal evidence was deliberately urged by her counsel upon the commissioners. The same consequences to the contract would result should one of the commissioners die or in any way become disabled so as not to be able to proceed in the matter. It is contended that this motion is premature; that it is not yet known that any one is to be injured by the award of the commissioners. It is, however, now known that two of the commissioners refuse to conduct the proceeding in a lawful manner. The petitioner is now aware of this; can it wait until the award is made and then complain? Will it not then be said: "You are too late with your complaints. You were informed during the trial upon what rules and principles a majority of the commissioners were proceeding, and you were not at liberty to remain silent; take your chances of obtaining a favorable award, and then complain. You should have refused at once any longer to be a party to the proceedings, knowing that errors could not be corrected by au appeal.' If a party is made aware, during the trial, of misconduct of a juror, and fail to complain until after verdict, it is then too late. In Faviell agt. Railway Company (2 Exch. R., 344), baron ALDERSON, said: "Where the defendant saw the arbitrator entertaining a question which he ought not to entertain, it was his duty to interpose and apply to the judge for the purpose of being allowed to revoke the submission which no doubt would have been granted had it appeared by affidavit that the arbitrator intended to exceed his jurisdiction. Instead of doing that, the defendants, although they find the arbitrator Matter of the New York, Lackawanna and Western Railway Co. going on, do not interpose but make the question one for his determination, and he has determined it" (See Morse on Arbitration and Award, 104, 105; Fox agt. Hazeltine, 10 Pick., 275; Brown agt. Leavitt, 26 Maine, 251; Hiltown Road, 18 Penn. St., 233; Christman agt. Moran, 9 id., 487). The case of Malmesbury Railroad Company agt. Budd (2 Ch. Div., 113), was a motion in an equity action to have it declared that an arbitrator had become and was disqualified from and incapable of being or acting as arbitrator under an indenture, and for an injunction restraining him from acting. Sir George Jessel, master of the rolls, in his decision said: "No doubt there is jurisdiction in the court to set aside an award on the ground of the corruption of the arbitrator, but if the corruption is proved beforehand so that the arbitrator is unfit to sit, it appears to me that by analogy to the writ of prohibition which goes to inferior courts to prevent a judge, who is incompetent, from deciding a case, there must be a similar jurisdiction to prevent the throwing away of the expense and trouble, to say nothing of the delay involved in going on with an arbitration before an arbitrator, who has no power of deciding the case." In Beddow agt. Beddow (9 Ch. Div., 89), the same judge granted an injunction to restrain an arbitrator who had become unfit by reason of personal misconduct from hearing the case. These cases are authority for the removal of arbitrators. before they make an award. It is true the orders were granted in equity actions brought for that purpose. While I have not found a precedent for the granting of just such a motion as this, there are many precedents, as we have seen, for setting aside awards on motion. This is a proceeding in this court. The order sought to be vacated was made by this court, and, as was stated by justice CLERKE in the case of Lowber agt. The Mayor, &c., of New York (5 Abb. Pr., 487), "it belongs to the essential inherent powers of this court to exercise such an efficient control over every proceeding in an action pending in it as effectually to protect every person Matter of the New York, Lackawanna and Western Railway Co. actually interested in the result from injustice and fraud, and that it will not allow itself to be made the instrument of wrong no less on account of its detestation of everything conducing to wrong, than on account of that regard which it is proper it should entertain for its own character and dignity." Not finding an exact precedent for this motion, my mind came to the conclusion that this order should be granted with reluctance and some misgivings as to its correctness. I am relieved, however, by the consciousness that if my conclusion is erroneous, an easy and speedy remedy is provided to correct my error. I have, in deciding this motion, assumed that the general term laid down the law correctly in this case, and believing it to be the duty of the commissioners to conform their conduct in the ad mission of evidence to the principles therein contained, and they having refused so to do, and this court having granted the order appointing them to the responsible position they hold, it is my duty to set aside the order and leave the parties to agree upon new commissioners or pursue such other course as they may be advised. I put this decision solely upon the ground above stated. Charges are made in the moving papers against one of the commissioners, touching some business transactions between himself, as a member of a firm, and Mrs. Bennett. These transactions all occurred after making of the award and at a time when it was not known that he would be required again to act in the proceedings, but without regard to the time of their occur rence. The affidavits read in opposition to the motion, fully and satisfactorily explain these transactions and remove any suspicion of impropriety on the part of the commissioner. The order granted by this court on the 25th day of October, 1883, appointing N. K. Hopkins, Brigham Clark and Robert Dunbar commissioners in this proceeding, should be vacated and set aside, and the commissioners removed. Negley agt. The Counting-Room Company. CITY COURT OF NEW YORK. CHARLES NEGLEY agt. THE COUNTING-ROOM COMPANY. Practice-On opening defaults when the judgment is allowed to stand as security-Effect of the lion. Where a judgment by default is opened on condition that the lien of the judgment shall stand as security, the plaintiff, if he finally succeeds, must enter a new judgment by filing a fresh roll containing all the papers in the case, the same as if no former roll had been filed. The order opening the default in legal effect modifies the judgment by depriving it of its ordinary character as a res adjudicata, but leaves it in full force as a lien or collateral security. If the plaintiff fails in the action the security is returned by canceling the collateral judgment, which loses its legal vitality and effect when the action fails. But if the plaintiff succeeds the security judgment is not impaired, but may be enforced, if necessary, by the plaintiff in aid of the final judgment. In case of appeal the trial or final judgment is the one to be appealed from, and no reference need be made to the security judgment. Special Term, August, 1885. MCADAM, C. J.—Judgment was taken against the defendant by default. It was subsequently, upon motion, so far opened as to permit the defendant to come in and defend upon the merits, the judgment in the meantime to stand as security. The action was afterwards tried and a verdict was rendered in favor of the plaintiff, on which he entered a fresh Judgment for the amount of the recovery, with costs, as taxed. The defendant insists that this practice is irregular as there cannot be two judgments for the same debt. But the claim is without force or merit, as the first judgment is merely collateral to the other and security only for its payment. In Hall agt. Templeton (4 Weekly Dig., 120) this court held that where a judgment by default is opened on condition that the lien of the judgment shall remain as security, the plaintiff, if he finally succeeds, must enter a new judgment by filing a fresh roll containing all the papers in the case, the same as if |