This order should be affirmed. The petitioner explained and excused his default, on the motion for *387 confirmation, and asked that the report of the commissioners should be set aside and a new hearing be ordered. The Special Term refused the request and confirmed the report upon the express ground that they had no discretion in the matter, and could not for such reason refuse confirmation. In this respect the General Term held that the court below erred; that power to open the default and refuse confirmation existed; and that the case should be remitted to the Special Term for the exercise of its discretion. o This ruling was correct. (In re N. Y. Cent. & H. R. R. R. Co., 64 N. Y. 60.) While .it is true that in the case cited a special motion was made by the land-owner on notice to the company, we can see no reason why the same question could not 'be raised on the motion to confirm, without resort to a separate proceeding.

The order of the General Term should be affirmed, with costs.

All concur, except Andrews, J., absent. .

Order affirmed.