The opinion
Gilbert, J. :
We think that the former adjudication in this matter does not affect this proceeding. The question then before the court was whether the fees of referees were a county charge, when the appeal was from the entire determination of the commissioners, and such determination had been reversed only in part. The question now arises indeed upon the same appeal, but it has turned out to be an appeal only from that part of such determination which affects the appellant’s yard and enclosure. That question was not involved in the former proceeding, and could not have been adjudicated therein. Such proceeding is not, therefore, a bar. “ If a man mistakes his declaration and defendant demurs, there is no doubt but that the plaintiff may set it right in a second action.” (Vin. Ab. Judgt, 2, 4; Chit. Pl., 227; Gilman v. Rives, 10 Pet., 301 ; Wilbur v. Gilmore, 21 Pick., 253 ; Dutchess of Kingston’s Case, 2 Smith Lead. Cas. [6th Am. ed.], 808; Stowell v. Chamberlain, 60 N. Y., 272 .)
The referees reversed that part of the determination of the commissioners which was embraced in the - appeal. The statute governing this case expressly authorizes an appeal to reverse a determination of this kind in part. (Laws 1847, chap. 455, § 8; 1 R. S., 518, § 86.) It also provides that when such determination shall be reversed the fees of the referees shall be a county charge. (Laws 1847, chap. 455, § 9.) The true interpretation of this sec *201 tion is that the fees of the referees shall be a county charge when the appellant succeeds on his appeal. The Legislature evidently intended to provide for the payment of such fees, either by the appellant or by the county upon every appeal. But in this case the appellant clearly is not liable, because the determination was modified and not confirmed. Such modification was in legal effect a reversal pro tanto. 'The statute giving the appeal and that fiying the fees of the referees and providing for their payment are in pari materia, and the intention of the Legislature may properly be gathered from both. (Smith v. People, 47 N. Y., 330 .) Taking those statutes together we think it is quite evident that the word “ reversed ” was intended to embrace a reversal in part as well as an entire one. “ When the Superior Court gives a judgment different from the inferior, they are said to reverse the proceeding.” (Bouv. Law Dic., tit. Reversal.)
The order should be reversed, and a peremptory writ should issue, with costs.
Pratt, J., concurred ; BarNard, P. J., not sitting.
Judgment reversed, and peremptory writ of mandamus issued, with costs, with leave granted to appeal to Court of Appeals.