In re Bensel

| N.Y. App. Div. | Sep 10, 1912

Woodward, J.:

The proceeding now before this court on review was originally instituted, to take certain pieces of property, and was known as section No. 15. Subsequently it was consolidated with section 17, and it appears to have been agreed among counsel before the commissioners that the taking should be regarded as of the 2d day of July, 1910, though the original taking, under the statute, would have been on the 6th day of December, 1909. The city of New York appeals from the award, urging that it is excessive; that there was a failure of evidence as to the claimant’s title to the premises; that an order of the Special Term, refusing to hear, the matter and adjourning the same to be heard by the justice who appointed the commissioners was an abuse of discretion, and that the award has not been apportioned so that the city of New York can comply with the statute and pay interest from the time of the taking. (See Laws of 1905, chap. 724, §§ 11, 17, as axnd. hy Laws of 1906, chap. 314.)

The latter objection, it seems to us, is fully met by the agreement to be found in the record, that the claimant stipulated to regard the consolidated proceeding as the original proceeding, and to fix the date of the taking as of the 2d day of July, 1910. It is true that no formal stipulation, as suggested, was entered into, but the informal agreement before the commissioners appears to have been acted upon by all parties throughout the proceeding, and we apprehend that the city of New York, being called upon to pay only interest from the time of the second taking, is not in a position to complain. Equally without merit is the effort to review the discretionary order of the court at Special Term, adjourning the proceeding. The court having jurisdiction had the discretionary power to send the case to another justice within the judicial district, and no essential right of the city is affected by the exercise of this discretion. It is very doubtful if the order is appealable in any event.

Upon the question of the claimant’s title there is no dispute. The record shows that the maps, stated to be made up from the title deeds of the claimant, and referred to therein, were in evidence in the first proceeding, and appear to have been adopted in the consolidated proceeding. No one is here claiming to have any interest in the real estate; the entire proceeding assumed title in the claimant, and there is not the slightest reason to suppose that there is any outstanding adverse title. At any rate, the proceeding having gone forward under the terms of the statute, it is not to be doubted that the city of New York has a good title, and that it would be protected in making payment to the claimant.

It is urged that certain testimony in behalf of the claimant should be disregarded, because it is alleged to have been based to some extent upon the opinions of others furnished privately. The record would seem to indicate that much of the claimant’s testimony was disregarded, for while his witnesses estimated his damages at $750,000 and over, as against $272,520 and above by the witnesses for the city of New York, the award made was only $380,000, or only about one-half that fixed by the claimant’s witnesses, It is always to be borne in mind that in condemnation proceedings the commissioners are called upon, in the discharge of their duties, to view the premises, and the rule is well established that an award by commissioners will not be set aside for inadequacy or because excessive unless the award is palpably wrong in either regard. Nor will' it be set aside for mere errors in the receipt or rejection of evidence. To justify the reversal of an award for error of law, it must be made to appear that the commissioners adopted an erroneous principle in estimating the compensation. (Harlem River & Portchester R. R. Co. v. Reynolds, 50 A.D. 575" court="N.Y. App. Div." date_filed="1900-04-15" href="https://app.midpage.ai/document/harlem-river--portchester-railroad-v-reynolds-5187681?utm_source=webapp" opinion_id="5187681">50 App. Div. 575.) There is nothing in the record now before us to indicate that the commissioners did not properly discharge their duties, and the order confirming the award should not be disturbed. In order to avoid any possible confusion, I suggest that as a condition of affirmance, the claimant be required to stipulate that interest upon the entire amount of the award be computed from the 2d day of July, 1910.

The order appealed from should be modified by providing that the claimant be required to stipulate that interest upon the entire amount of the award be computed from July 2,1910, and as so modified affirmed, without costs.

Jenks, P. J., Burr, Thomas and Rich, JJ., concurred.

Order modified by providing that the claimant be required to stipulate that interest upon the entire amount of the award be computed from July 2, 1910, and as so modified affirmed, without costs.