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[Vol. 152.

from the negligence of the state in the management of the Champlain canal.

The facts, so far as material, are stated in the opinion.

Thomas O'Connor for appellant. Claimant's proof shows two items of damage- decrease in rental value caused by the dampness and water in the cellar and damages to the building caused by the water. Having proved such damages, and there being no contradictory proof, the claimant is entitled to an award for the full amount claimed. (Sayre v. State, 123 N. Y. 291.)

T. E. Hancock for respondent. The award was sufficient. (Chase v. N. Y. C. R. R. Co., 24 Barb. 273; Rowland v. Baird, 18 Abb. [N. C.] 262; Easterbrook v. E. R. Co., 51 Barb. 97, 98.) Claimant was not entitled to recover for permanent diminution in value of her premises, but only such as she sustained prior to the commencement of her action. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Pond v. M. E. R. Co., 112 N. Y. 186; Ottenot v. N. Y., L. & W. R. Co., 119 N. Y. 604.)

GRAY, J. The claim against the state was for the damages caused to the building of the appellant, in Mechanicville, Saratoga county, N. Y., by the leakage of water from the Champlain canal, in May, 1891. There was evidence that the aggregate expenditure of $426.93 would be required in mason and carpenter work to repair the injury done by the water, which came into the cellar. There was, also, evidence that there was a decrease in the rental value of the house of $7.50 a month, as a result of the presence and action of the water in the house during the time intervening between the leakage into the cellar and the subsequent construction by the state of a sewer or drain. The Board of Claims found the fact of the leakage from the canal into the claimant's premises, to the damage of her building, and that the damages which she sustained were caused by the negligence of the state; but the award was only for $50. There was no inspection of the

premises by the board and the evidence as to the damage and as to the cost of repairing was uncontradicted. In view of the evidence and of the findings, no reason is to be perceived for the smallness of the award made; except it be that the opinion obtained that no damages were recoverable in such a case, except for the loss of rental value. We think that the claimant was entitled to recover not only for the actual loss of rental value, but for the expense necessary to repair the damages occasioned to the building by the water. In the Slavin case, which was tried at the same time as was the present one, and which arose upon a similar state of facts, we had occasion to consider the questions which are here presented and the true rule of law, which should guide the Board of Claims in its award, was there stated. As the discussion had then was complete and is in point, nothing need be added to it now.

The award should be reversed and the claim remitted to the Board of Claims for further hearing.

All concur.

Award reversed.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE FOREST COMMISSION, Appellant, v. FRANK CAMPBELL, Comptroller of the State of New York, Respondent. No. 1.

THE SAME 2. THE SAME. No. 2.

1. APPEAL REVIEW OF DISCRETION. The quashing of writs of certiorari, on the specific ground that the relator had no power or authority to obtain or prosecute them, is not exempt from review on appeal, on the ground that it is an exercise of discretion.

2. APPEAL FINAL ORDER. A final order in a special proceeding, which determines the same, is reviewable in the Court of Appeals.

3. FOREST COMMISSION

CONTINUOUS BODY. The forest commission has been a continuous body since its creation, under chapter 283 of the Laws of 1885, and proceedings instituted by it may be prosecuted and defended to final effect, the same as if the act of 1885 had not been repealed.

4. CERTIORARI - CODE CIV. PRO. § 2127. A writ of certiorari, sued out in the name of the state on the relation of the forest commission, to review a decision canceling the title of the state to lands acquired at a

tax sale, is "by or in behalf of a person aggrieved," within the meaning of section 2127 of the Code of Civil Procedure.

5. FOREST COMMISSION AS RELATOR. The forest commission, as relator in a writ of certiorari sued out in the name of the state, is not required to act in the names of the individual members composing it.

People ex rel. Forest Com. v. Campbell, 82 Hun, 338, 614, reversed.

(Argued February 1, 1897; decided March 2, 1897.)

APPEALS from orders of the General Term of the Supreme Court in the third judicial department, entered January 8, 1895, which quashed writs of certiorari in each of the aboveentitled proceedings.

Proceeding No. 1 was instituted to review the action of former Comptroller Wemple in canceling the sale of certain lands made to the state in 1877 within the limits of the forest preserve for unpaid taxes. This cancellation was granted upon the ground that certain taxes had been paid before the sale. Application was thereafter made to Comptroller Campbell, the successor of Comptroller Wemple, to set aside this cancellation of the state's title, and the same having been denied, the second proceeding seeks to review that action of the Comptroller.

At the General Term the respondent moved to quash the writs upon two grounds:

1. That the relator, The Forest Commission, is not the party aggrieved by the determination sought to be reviewed. and is not entitled to sue out the writ.

2. That the relator, The Forest Commission, is not a body corporate and must act in the names of the individuals composing it.

This motion was granted without considering the merits and on the specific ground in each case "that the relator, The Forest Commission, has no power or authority in a case like this to obtain or prosecute such writ."

William P. Cantwell for appellant. The orders are appealable to this court. (People ex rel. v. McCarthy, 102 N. Y. 631; People ex rel. v. Comrs., etc., 97 N. Y. 37.) The pro

ceeding is on behalf of, and in the name of, the People of the State of New York. (L. 1885, ch. 283, § 11.) The forest commission is a governmental agency-a unit, acting as a corporation acts, by and through its aggregate character. Its powers are given, not to the commissioners, but to the commission. Its duties are imposed, not upon the individuals who compose it, but upon the commission itself. (Code Civ. Pro $$ 605, 1313, 2146; L. 1893, ch. 43; 23 N. Y. 224; 54 Barb. 145; 7 Lans. 220; People v. Turner, 145 N. Y. 451.) No valid objection can be raised upon the ground that the forest commission and the comptroller, both being the servants and agents of the state, cannot antagonize or oppose each other in an action, or that a certiorari cannot be used by one department of the state government to review the action of another. (2 Jacob's Fisher's Dig. 1756, 1768; Code Civ. Pro. § 2120, subd. 2.) The argument "that any action or proceeding which the forest commission is by law authorized to prosecute must be so prosecuted either in the name of the People of the state, or in the names of the individuals composing the commission," is untenable. (People ex rel. v. Coleman, 41 Hun, 307; People ex rel. v. Cholwell, 6 Abb. Pr. 151; People ex rel. v. Cook, 62 Hun, 303.)

Frank E. Smith for respondent. The orders of the General Term are not appealable to this court. (People ex rel. v. Stilwell, 19 N. Y. 531; People ex rel. v. Tax Comrs., 85 N. Y. 655; People ex rel. v. Hill, 53 N. Y. 547; People ex rel. v. Comrs., etc., of Brooklyn, 103 N. Y. 370.) The appeal to this court abated on the repeal of the law which created the forest commission. (L. 1895, ch. 395; Code Civ. Pro. §§ 1298, 1930.) The writs were properly quashed by the General Term as improvidently granted. (Code Civ. Pro. $$ 1929, 2127, 2129, 2130; People ex rel. Comrs. of Land Office, 135 N. Y. 447; L. 1885, ch. 283, $ 11; L. 1893, ch. 332, § 112; Suprs. of Galway v. Stimson, 4 Hill, 136; People ex rel. v. Bd. of Comrs., 97 N. Y. 37.) No questions relating to the merits of the orders made by the comptroller

Opinion of the Court, per BARTLETT, J.

[Vol. 152.

are now before this court. (Code Civ. Pro. § 191; Lake v. Gibson, 2 N. Y. 188; Wilkins v. Earle, 46 N. Y. 358; Hackett v. Belden, 47 N. Y. 624; Delaney v. Brett, 51 N. Y. 78; Peterson v. Swan, 119 N. Y. 662.)

BARTLETT, J. This appeal calls upon us to determine the powers of the forest commission under the original act of its creation (Chap. 283, Laws of 1885) and subsequent legislation upon the same subject.

A brief statement of the facts will make clear the situation which led to the institution of these proceedings. At a tax sale in 1877 the comptroller bought in the property in question, being a part of the present forest preserve, and in June, 1881, executed a deed to the state, which was recorded on the 8th of June, 1882, in Franklin county.

In March, 1887, the People of the state of New York commenced an action in the Supreme Court against one Benton Turner to recover the possession of a quantity of saw logs cut by him upon the premises in question. While this action was pending in April, 1890, the defendant Turner, claiming to be the owner of the premises, applied to Comptroller Wemple to cancel the state's title under the sale of 1877 and the subsequent deed from the comptroller. This application was opposed before the comptroller by the forest commission on the ground that the pending action against Turner would determine the question of title between him and the state. Comptroller Wemple, following this suggestion, postponed the hearing.

In April, 1891, this action was decided in favor of the state, and the record therein was filed with the comptroller by the counsel for the forest commission, who insisted that the judg ment was a complete answer to Turner's application. Comtroller Wemple's term of office expired on the 31st of December, 1891, and on that day he made the order canceling the state's title on Turner's original application.

Two preliminary objections to the hearing of this appeal are made by the respondent.