105 N.Y.S. 750 | N.Y. App. Div. | 1907
This proceeding was instituted by the city to acquire title to-certain land's- and wharfage property for the. so-called “ Chelsea Improvement” on the North river water front, between Eighteenth and Twenty-third streets. This improvement is a part of the gen- ' eral plan for the enlargement of the dock system of the city, a part ' of which will result in the creation 'of a marginal street at the locus m quo 175 feet in width. All of the land taken was originally under water. '
Parcel 33 upon the damage' map -was situated between West Nineteenth and Twentieth streets on the east side of Eleventh avenue,'and is part of a large plot owned by the Consolidated Gas Company. The part of the said lot to be taken extends from Eleventh avenue 231 feet 7 inches eakt on West Nineteenth street and 160 feet 6 inches east from Eleventh avenue on West Twentieth street. It contains 36,071.36 square feet, and upon it is erected a gas holder occupying almost the entire space, a one-story brick valve house,, a pump house and part of a boiler house, through which runs the easterly diagonal bounding,- line of the lot to be taken. The -plot owned by. the- gas company remaining contains 28,328.64 square feet, and will be transformed from an interior lot upon the south side 231 feet 7 inches, and. upon the north side 160 feet 6 inches from Eleventh avenue to a front lot upon a street 175 feet in width. For this damage parcel 33, the commissioners
Damage lot No. 16 is a triangle situated on the north side of West Eighteenth street, whose-base is 50 feet 10J inches, whose perpendicular is- 131 feet 7f inches, whose diagonal is 141 feet 1-J-inclies. The apex of this triangle is 52 feet 4f inches south of • Nineteenth street. The plot to he taken contains 3,346.18 square feet and there remains of the parcel from which it is taken 10,453.82 square feet. The result of the improvement will be to transform the lot from which the triangle is taken from an inside lot 275 feet from Eleventh avenue to a lot having a frontage of 141 feet 1$ inches., upon the new street 175 feet wide. For this triangular lot No. 16, which in area contains about one and one-third city lots, the commissioners awarded nothing, deeming that the benefit of the improvement to the portion of. the lot remaining exceeded the damage caused by taking this triangle.
The value of the lot 16 before the taking was testified by the city’s witnesses to be $11,377. One of the company’s experts valued it at $19,035.19, and the other at $19,907. The witnesses for the city gave the increase of value to the remaining portion of the parcel from which this triangle was taken, by reason of its frontage on thé new marginal street, on'e of $32,548.11, and the other of $31,669.43. Thus, according to.the testimony of the city’s witnesses, the benefit to the part remaining, on account of the improvement, was upwards of $20,000 more than the value of the part taken. The witnesses called on-behalf of the gas company did not take into consideration the increase in value on account of the remaining part of the land being on the new marginal street. The benefit to the part left upon this evidence far exceeding the value of the part taken, the commissioners awarded nothing for the part ' taken for damage lot No. 16.
In regard to parcel 33 the. witnesses for the Consolidated Gas Company did not take into consideration the increased value by reason of the new frontage. The witnesses for the city testified, one that the part not taken was increased in value by reason of this new frontage to the amount of $46,550.61; the other, $46,552.12.
One of the commissioners disagreed with his associates as to the
The gas company, while not contradicting the testimony of the increased value to the part remaining, offered by the city, contends that the commissioners have.followed an erroneons.principle in-their method of valuation for the following reasons: "(1) That the' method of valuation provided in section 822 -of the charter does not apply to this proceeding; (2) that the deduction for benefits* whether • under section 822 of the charter or under the common daw, is unconstitutional and in violation of the 14th 'améndment to the Federal Constitution; (3) that the commissioners in this proceeding have no power to assess for benefit. "
■ By section 822 of the charter (Laws of 1901, chap. 466), in force at the time of the commencement of these proceedings, it was pro: vided that the commissioner of docks may direct the. corporation counsel to take legal proceedings to -acquire property for the city, “and the said corporation. counsel' shall take the 'same proceedings to acquire the same as are by Mw provided- for the taking of private property in said city for public streets or places, and the provision's of law relating to the taking, of private property for public streets or places in said city are hereby made applicable, .as far as may be necessary, to the' acquiring of the" said property, rights, terms, easements and privileges, and the said commissioner of docks is, also empowered to acquire in like manner the title to such lands under water and uplands, within The City of Mew York, as constituted by this act, as shall seem to said .commissioner of docks necessary to be taken for the improvement of the water front. * " * *■ The just compensation to which the owner of property taken under the foregoing provisions is entitled shall'-be .ascertained and determined upon the following principles. • If all of the property of such; owner is taken, the compensation awarded shall be the fair and just' yalue of the said property. . If the property of the riparian proprie
Section 970 of the charter in force at the time, derived from section 964 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1897, chap. 637) and section 970 of the charter of 1897 (Laws of 1897, chap. 378), authorizing the city to acquire title for the use of the public to all or any of the lands required for streets, provides that the lands, tenements and hereditaments that may be required for such purposes may be taken therefor, and compensation and recompense made to the parties and persons, if any such there shall be, to whom the loss and damage thereby shall be deemed to exceed the benefit and advantage .thereof, for the excess of the damage over and above the value of said benefit, and the city was authorized to- make application for the appointment of commissionei’s of estimate and assessment to ascertain and determine the compensation and recompense which should justly be made to the respective owners, etc., of the lands and premises proposed to be taken for any of the purposes aforesaid, and to assess the cost of such improvement or such proportion, thereof as the board of estimate and apportionment directs, upon such parties and persons, lands and tenements as may be deemed to be benefited thereby.
"The question here presented is, where part of a parcel of private property is taken for a public improvement by the city the cost of which improvement is to be paid not by assessment, but by the city at large, is it lawful for the commissioners in estimating the just compensation for said property so taken to consider the special benefit accruing to the portion of the parcel left by reason of the improvement ?
It must be clearly borne in mind that here the State, through ■one of its political subdivisions, the city of Mew York, is exercising
. The distinction in the application, of the'.principle was pointed out by Judge Peckham in Bohm v. Metropolitan Elevated Railway Co. (129 N. Y. 576)’ in. these words: “1 should hesitate to admit the correctness of the claim made by defendants ’ that where private property is taken by a -mere business, corporation as for a public use under the granted power of eminent domain, the Legislature- could provide that such property could be paid for by benefits -accruing to -the landowner’s, adjacent property conse- - quent upon the taking. This is the case in regard to. municipal corporations where land is taken for a public street or other public .and-municipal purpose, and.where the benefits arising to the adjacent lands of .the owner whose property is taken may be set off against the value-o-f the land taken.- .Sti¿ in.the case of -property taken by the • State for canal or other public purposes, where the owner of the land taken was frequently: paid its.'value-by the benefits: received to his adjacent land not taken.” . Therefore, as tins provision • is expressly exempted from application' to the city, and as we-have found no
The right to take private property by eminent domain is coupled with the constitutional limitation that it can only be so taken upon just compensation. The right of-.taxation is coupled with no such limitation. There is a line of cases in this State which may be said to begin with Livingston v. Mayor (8 Wend. 85), oftén cited to support "the broad proposition .that when a part of a lot is taken the benefit to the remainder may be offset against the damage for the part taken... Most of these cases were under statutes which provided for the payment of the improvement by .assessment, and, therefore, involved the exercise of the two rights .of eminent domain and of taxation. These cases are as follows: In the Livingston Case (supra), which was in a street opening proceeding in the city of New York, the statute in force was chapter.86 of the Be vised Laws of 1813, which provided for the appointment of commissioners who should estimate the damage arid assess the costs of the' improvements upon a limited area fixed in the act,
Belts v. City of Williamsburgh (15 Barb. 255) arose .under. , the act of March fifteenth (Laws of 1848, chap. 90), and by the 23d - section thereof the assessors were required to apportion and assess the amount of the expenses.and the compensation to the owners of land taken upon all the persons and lands to be benefited by doing the '.thing which the trustees have determined' to .have done, in propor- . tion to the separate benefit or advantage which the same- will be to the persons or lands upon equitable principles. The court said: “ If the-value of the- improvement -should not exceéd the amount •offset against the value of his land taken, he is not benefited at all, >nd he could not be assessed for any additional sum according to the terms of the act.”-- "
-• Matter of Furman Street (17 Wend, 649) was also a case where -the commissioners of estimate and' assessment were required to assess for benefit. ':
' Granger v. City of Syracuse (38 How. Pr. 308) involved the opening and widening of a street iii. the city o.f Syracuse'. Judge Daniels said-: “ And the expense ■ attending it is not rendered exclusively •local as that which may properly be deemed, a local improvement is, but-the commissioners appointed.for its assessment are required to direct such part of it to be assessed upon the city at large- and such part'locally as they shall deem best. [Laws of 1857, chap, 63, tit.. ■S,'§ 4-] And-that cdursé was pursued in the present instance, for ■the larger portion of the expense was shown to have,been assessed •upon-the city. * * *■■ These commissioners awarded' damages in- three different instances for property required to be appropriated to the improvement of .the street.- *. * ■ * As to the other prop-' ■.erty taken for the improvement, they reported generally that ‘ the •owners thereof are fully.compensated for the benefits to the adjoining-land owned by them respectively.’ ■* * * This award was warranted in substance by the statute
People ex rel. Griffin v. Mayor of Brooklyn (4 N. Y. 419). The head note is as follows : “ A statute which authorizes a municipal corporation to grade and improve streets and to assess .the expense among the owners and occupants of lands benefited by the improvement in proportion to the amount of such benefit is a constitutional and valid law. * * * Such an assessment is an exercise of the power of taxation vested in the S tatemovern ment, and is not in conflict with that part of the Constitution which declares that ‘ no person shall be deprived of life, liberty or property without due process, of law; nor shall private property be taken for public use without just compensation.’ Private property may be taken for public use either by taxation or by the right of eminent domain. Taxation exacts money from individuals as their share of a public burthen, and the taxpayer receives, or is supposed to receive, just compensation in the benefits conferred by government and in the proper application of the tax. But where property is taken by right of eminent domain, it is taken not as. the owner’s share of a public burthen, but as so much more than his share. Special compensation is therefore to be made.' Taxation operates upon a community, or upon a class of persons in a community, and according to some rule of apportionment. The exercise of the right of eminent domain operates upon individuals, arid without regard to the amount or value exacted from any other individual or class of individuals. The power to tax implies a power to apportion the tax as the Legislature shall see fit; and the power of apportionment has no limit where there is no constitutional restraint. And there is nothing in the Constitution of this State which requires that taxation shall be general so as to embrace all taxable persons within the State, or within any district or territorial division of the State, or that it shall be equal, as in the case of a capitation tax, or that it shall be in proportion to the value of the property of the persons taxed, or that it shall not be apportioned according to the benefit which each taxpayer is supposed to receive from the object on which the tax is expended,” Etjggi.es,. J., said, in referring to Livinston v. Mayor.
In Howell v. City of Buffalo (37 N. Y. 267), referring to People ex rel. Griffin v. Mayor of Brooklyn (4 id. 419) the court said: “It is settled by the case above cited that an assessment for local iinprover ments when made upon the owner of lands benefited, in proportion to the amount of such benefit, is an exercise of the taxing power.”
Genet v. City of Brooklyn (99 N. Y. 296) was also concerned with an assessment. The court there said: “We think the. argument fails in omitting to separate the two powers exercised by the Legislature in framing the act of 1868,
No one of these cases, therefore, is decisive of the matter at bar, bécause no assessment is to be laid, nor is the taxing power .of the
In Lewis on Eminent Domain (2d ed. § 471) it is said : “ In taking private property for public use, the State acts rightfully and not as a wrongdoer. It guaran tees just compensation and nothing more. "x" * It is self-evident that where a part of a tract is taken the just compensation cannot be determined without considering the manner in which the part is taken, the purpose for which it is taken, and the effect of the taking upon that which remains. All the authorities concede this so far as damages to the remainder are concerned, and the justice of so doing may he taken for granted. But what justice is there in consider*ing the effect in so far as it produces damage only ? * * * Where part of the tract is taken/ just compensation would, therefore, consist of the value of the part taken and damages to the remainder, less any special benefits to such remainder by reason of the taking and use of the part for the purpose, or, what is the same thing, it is the value of the whole tract irrespective of the taking, less the value of that which is not taken, taking into consideration the purpose for which the part taken is to be used and excluding any but special benefits to the property which remains. Just compensation thus estimated is a sum of money which makes the owner whole and in respect to general benefits or damages resulting from the work or improvement leaves, him in as good a situation as his neighbor, no part of whose property has been taken.”
In Cooley on Constitutional Limitations (7th ed. p. 822) it is said: “ If less than the whole estate is taken, then there is further to be considered how much the portion not taken is increased or diminished in value, in consequence of the appropriation. But in making this estimate, there must be excluded from consideration .those benefits which the owner receives only in common with the community at large in consequence of his ownership of other property, and also those incidental injuries to other property such as would .not give to other persons a right, to compensation; while allowing those which directly affect the value of the remainder of the land not taken. * * * And if an assessment on these principles rqalces the benefits equal the damages, and awards the owner
“Compensation, as the term is now used in the various constitutional provisions against taking private property for public use without making just compensation, means recompense or remuneration for fhe property which is taken or injured.” (15 Cyc. 638.)-“In other States the courts have favored the view that taking into consideration the benefits which result from the improvement in estimating the damages to the remainder, when a part only of a .tract of land is taken, is not really'deducting benefits, or advantages from damages, but amounts to ascertaining whether there are' damages.” (10 Am. & Eng. Ency. of Law [2d ed..], 1177.)
Mills on Eminent. Domain (2d ed. § 149) states: “ Power to deduct benefits from compensation.— This power must properly be.considered as belonging to that of eminent domain rather than to that of the taxing power. When no property is actually taken from- the subject and he is called upon to contribute his share of the expense, of a public improvement,- the call made upon him is properly a tax. When property is taken and there is deducted from tlie value of, the property taken and of. the incidental damages suffered, ■ the benefits to the land remaining, that must be considered as a .step in the process of arriving, at the just compensation required to be made when property is taken by the exercise of eminent domain. Consti-. tutions do not generally provide that the value of' the land shall be paid, but that just compensation shall be paid; just as regards the-public as well as the individual.” •
Chancellor Walworth- said in Livingston v. Mayor (supra): “ The. owner of the property taken is entitled to á full compeiisation for the damage he sustains thereby, but if .the taking of his property for the public improvement is a benefit rather than an injury to him, he- certainly has no equitable claim to damages.”
Eldridge v. City of Binghamton (120 N. Y. 309) was-an action of ejectment to- recover'possession óf a parcel of land in the city of Binghamton which fprmerly constituted" part, of ' the Chenango canal, ft was conceded on the trial that the usual and regular steps were taken by the State to condemn the land and that on the ftl) of September, 1838, Squires and Abbott, predecessors ip title
I am of the opinion that the provisions of section 822 of the charter, hereinbefore quoted, are constitutional, lay down the* proper rule, and are applicable to the case at bar. So far as plot 33 is concerned, clearly so, because-in the most restricted sense of the word there were “ improvements ” upon said plot.. I think they are also-applicable to plot 16. The language is: “ If the property of the riparian proprietor has been built upon or improved, and if such buildings or improvements are upon a single tract contiguous .to or adjoining lands under water, or which were originally under water, and used in connection therewith.”
From the nature of the property under -consideration in the section, 1 think it would be a too narrow construction to read the words “ or improved ” and “ or improvements ” as identical with “ built upon” and “ buildings.” ■ I think when we are dealing with- lands linder water, or originally under water, that if they are brought to ■
Rrom the time of the-passage of chapter 86 of the.Revised Laws of 1813, the city has had a local condemnation law of its own for street opening proceedings, the substantial provisions of which are continued to the present time. The general provisions of this statute have been applied from time to time, in proceedings to condemn property for other use than streets, as we have recently had occasion to point out in Matter of Commissioner of Public Works (111 App. Div. 285; affd., 185 N. Y. 391). In street opening pro-, ceedings the general policy of the city has been to provide for the payment of the costs and expenses thereof by assessment upon the property benefited.
Section 980 of the revised charter (Laws of 1901, chap. 466) provides that the commissioners shall ascertain and estimate the compensation which ought justly to be made by the city to the respective owners, and also make a just and equitable estimate and assessment of the benefits and advantages of such improvement to the respective owners, arid prepare an abstract of fheir estimate and assessment. And section 970 thereof provides that the compensation and recompense made to the owners of- lands taken shall ■ be the excess of damage over and above .the benéfit, and that the cost of the improvement should be assessed upon the lands deemed benefited thereby. Land taken for dock purposes is not pail for
■ Inasmuch as .the assessment ■ proceedings provided for in street ■ opening proceedings could not apply, and, therefore, the benefit and ■ advantage could not be-offset by-way’of assessment,‘the Legislature, realizing that when the State or a political division thereof was concerned,- it. Was a proper rule in estimating damages to consider benefits, inserted, this--principle in the dock condemnation section, whereby'what I understand to be a general proposition of law has become crystallized in-the statute. A. statute is to be construed as-a whole, and all of its provisions are to be given'effect if possible. If the provision alluded to is not to-be given effect in this proceed-' ing, it must be for some other reason than is apparent from its language,.which, to my mind, "is .so clear as not' to need interpretation. ■ The gas company alleges that. it is unconstitutional as in viola- ■ tion of the 14th amendment of the Constitution of the United ' States. The interpretation "given by the Supreme Court of the. United States to a provision of that Constitution is binding and controlling upon all courts. There is such a decision winch, it seems to me, is conclusive of the question under discussion.' -That case is Bauman v. Ross (167 U. S. 548),- Hr. Justice Gray writing for a' unanimous court. - That case, having arisen in the District of ■ Columbia and under the laws of Congress applicable thereto, was '■ considered under the 5-tli amendment of the Constitution of the United States which provides that “ no person'shall * "" * be-deprived of- life, liberty or property without due process of law,.- ' nor shall private property be taken, for public, use without just compensation;”- This amendment has been -held to apply to the'statutes of the United States and the acts of officers thereof. Section 1 of the 14th amendment-provides.: “Nor -shall any State deprive any person of life, liberty or property Without due process of law, -nor deny to any person within its jurisdiction .the equal protection of the laws ;” and the Constitution of the State in article'.!, section 6,' provides that no person shall ‘‘ be deprived of■■ life, liberty or-propefty without "due process of -law, nor shall private property be taken . for. public use without, just ^compensation,” which is identical with ;
In French v. Barber Asphalt Paving Co. (181 U. S. 324) Mr. Justice Shiras said.: “ Certainly it cannot be supposed that by the Fourteenth Amendment it was intended to impose on the States, when exercising their powers of taxation, any more rigid or stricter curb than that imposed on the'Federal government, in a similar exercise of power, by the Fifth Amendment.”,
Therefore, it would seem that a decision by the Supreme 'Court, of the United States under the 5th amendment with respect to proceedings under an act of Congress, applicable to. the District of Columbia, is a direct authority under the. 14th amendment in proceedings under the laws of the State of New York. The statute under consideration and whose constitutionality was attacked in: the Baumcm case .was passed March 2, 1893 (27 U. S. Stat. at Large, 532, chap, 1.97), entitled'” An act to provide a permanent system of highways in that part of the District of Columbia lying outside of cities.” Section 11 thereof (Id. 535) provides thatwhere the use of a part only of any parcel or tract of land shall, be condemned in Such proceeding the jury, in assessing the damages therefor, shall take into consideration the benefit (that) the purpose for which it is taken may be to the owner or owners of such track or parcel by enhancing the value of the remainder of the same and shall give their verdict accordingly, and the court may require in such case that' the damages and the benefits shall be found and stated separately.”
The Court, of Appeals of the District of Columbia decided that the owner of a.parcel of land, a right of way over part of' which is condemned under this statute, is entitled to recover the full value of the part taken, free, of any deductions for special benefits to the remainder. In reversing, this decision, after examining authorities in many States and the leading text.books on eminent domain, Mr. Justice Gray concluded: “ The right of eminent, domain, as was said by this court, speaking through the Chief Justice, in a recent case, ‘ is the offspring of political necessity and is inseparable from sovereignty unless denied to it by its fundamental law. It cannot be exercised, except upon condition that just compensation shall be made to the owner; and it is the duty of the State, in the con
Among the other cases cited‘with approval was the opinion of Mr. Justice. Cranoh in Chesapeake & Ohio Canal Co. v. Key (3 Cranch C. C. 599), who said: “ If the jury had not been required by the charter to consider the benefit as well as tlie damage, they would still have been at liberty to do so, for the Constitution does not require that the value should be paid, but that just compensation should be given. Just compensation means a compensation which would be just in regard to the public as well as in regard to the individual, and if the jury should Be satisfied that the individual would, by the
There was. no question of assessment involved under the section of the statute there construed. It was solely whether special benefits could bo considered in arriving at a just compensation.
The learned counsel for the gas company claims that the Supreme Court of the United States receded from its position in the Bauman case in Norwood v. Baker (172 U. S. 269). That case was on appeal from the Circuit Court of the United States for the Southern District of Ohio, the Constitution of which State in force at the time provided: “‘And such compensation shall be assessed by a jury without deduction for benefits to any property of the owner.” Bauman v. Ross (supra) was not overruled, b.ut, on the contrary, was cited with approval. What was decided in the Norwood case was that, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. And in French v. Barber Asphalt Paving Co. (supra) the Supreme Court of the United States reasserted the doctrine of Bauman v. Ross, quoting in extenso therefrom, and limited Norwood v. Baker to the facts presented by it, and stated that the case had not overruled the previous authorities.
Thé complaint of the gas company, that it is unequal and unjust, and, therefore,'unconstitutional, that the damage to the part of its property which was taken is to be reduced by the amount of the benefit to the remaining property by the creation of this marginal street, while the owner of a parcel which is entirely taken receives full payment, and that the owner of property of which none is taken receives the full benefit of the street without payment therefor, is _ answered, first, by the fact that the question involved at bar is not one of taxation; the gas company is not paying for the improvement
In Cole v. Boston (181 Mass. 374), Barker, J., said: “The damages to be awarded are. the value of the property taken and of result-, ing .damages, if ■ any, to the remaining property not taken, less the amount" of the special and. peculiar benefit, if any, to the remaining property from the operation of the act. If the special benefit equals or exceeds the amount of damages ascertained by this rule, the land, owner is not entitled to a verdict for damages.” .
'• Mr. Justice Brewer,, whe.n a member of the- Supreme Court of the State of Kansas, in Commissioners of Pottawatomie Co. v. O'Sullivan (17 Kans. 58) stated the rule as-follows : “ But this compensation is secured if the individual receive an amount: which, with the direct benefits accruing, will equal the loss sustained by the appropriation. We of course exclude the indirect and general benefits which result to the public as a whole- and,' therefore, "to the individual as one of the. public ; for lie pays in taxation for his share of such general benefits-.' But if the proposed road or other improvement inure .to the direct and special benefit of the individual out of whose property a part is taken, he receives something which none else of the public receive, and.it is just that this -shall be taken into account in determining what is compensation. Otherwise,, lie is favored' above 'the rest,- and: instead of simply being .made whole, he profits by the
It is my opinion, therefore, that whether section 822 of the charter is to be applied or not, the general rule upon principle ■ and authority, where there is no.constitutional or statutory provision to the contrary, supports the action1 of the commissioners in arriving at the just compensation to be paid to the owners for the portion of their land taken by the city in this proceeding, in deducting the amount found by them to be the special and peculiar benefit,which the remaining land receives from the improvement.
The gas company further complains that by the1 taking of its gas holder it was obliged to construct a main from another of its sources of supply to provide' gas for the district formerly served by this gas holder, and that it should have been allowed the expense incurred thereby. It received compensation for its gas holder as part of a going concern, and the compensation therefor is applicable to the expense of providing the substitute in its system. It would be as reasonable for a property owner whose house had -been paid for to •demand in addition thereto the cost of erection of a new house. The decision of the commissioners was correct.
It was also complained that it has not received an award for certain mains which it had in the street for the purpose of distributing the gas furnished by the holder. These mains have not been taken by the city, and the commissioners rightfully decided that the value thereof was no part of the compensation to which the company was entitled.
The city, upon its" cross appeal, complains of the award for the gas holder, upon the ground that it was treated by the commissioners as part of a going concern, and urges that the company had no franchise to lay mains connecting this, gas holder with its systein. No such question can be litigated in this proceeding. The
The- order appealed from should be- affirmed, but as both parties appealed, without costs to either.' ’ •
'■ Houghton and Lambert, . 3"J.,_ concurred; Ingraham and McLaughlin, JJ., dissented as to damage lot No. 16 and damage lot No. 33, being of- opinion that the appellant was entitled to a substantial award ■ for those properties, without deduction for the assumed benefit in consequence-of. the increased value, of, the property remaining on account of the marginal street to -be opened by. the city of New York¡ , ,
Order affirmed, without costs;
See Laws of 1857, chap. 63, tit, 8,'.§ 3 [Rep,
Chap. .631.—[Rep,
See 1 R. S. 225, § 46; Id. 226, § 53; Laws of 1833, chap. 32.— [Rep, •
Amd. by Laws of 1893, cliap. 397.—[Rep,
School District, Lake County.— [Rep.
