The decision of this court In re N.Y.C. H.R.R.R. Co. (77 N.Y. 248) disposes of all the questions raised upon this appeal adversely to the appellants, except the point urged that the court had no power to allow the railroad company to amend the petition by striking out the allegation in regard to a draw-bridge after the order appointing commissioners had been made and appealed from.

In regard to this question we think the Special Term erred in allowing the amendment. The proceedings are statutory, in derogation of the common law, and hence the statute should be substantially followed. The petition which was served, and upon which the order was granted, contained an offer of a draw-bridge, and without this, for any thing which appears, the application may have been refused by the court. Being the foundation of all the subsequent proceedings, and the owner of the land having a right to file an answer to the same, the alteration in regard to this allegation was of a vital character, and the granting or withholding of the draw-bridge, and cutting off the right of the riparian owner from the river or from furnishing access to the same, may have made a material difference. As it stands, no opportunity has been furnished to answer the same, and the appellant has been deprived of a right by means of the order granting the amendment. Such being the case, the court exceeded its power in making the order.

The claim that the court had power to amend the petition under section 20 of chapter 140 of the Laws of 1850 has no force, and that provision is limited to "any defect or informality" and does not embrace an entire change of the ground upon which the application is founded, and that too after an appeal has been taken, and the Special Term has passed upon its merits.

For the reason stated, the order of the General Term should be reversed, and as the petitioner does not seek to maintain its right to take the land upon the original application, the proceedings should be dismissed, with costs.

All concur; EARL, J., in result.

Judgment accordingly. *Page 456