129 N.Y.S. 214 | N.Y. App. Div. | 1911
Lead Opinion
I agree with Mr. Justice Scott that where confirmation of a report is refused upon the ground stated by the learned justice at Special Term new commissioners should always be appointed, and if the refusal to confirm the award is affirmed that the order should be modified by appointing new commissioners, instead of sending it back to the commissioners whose award was not confirmed. An examination of the expert testimony in this case seems to show that the very great difference of opinion was based largely upon a difference as to what this property could be in the future used for, and what it could some time in the future be sold for, rather than its present market value.
In view of the testimony before the commissioners, and what seems to me to be the absence of any real evidence as to what the actual value of the property is, I do not think it was error for the court to provide that the question as to the value of the property taken should be determined by new commissioners when the evidence as to what the property would actually sell for to-day, rathór than its prospective value in the future could be more satisfactorily established. What I think the commissioners had to determine is its present value, what it would
Laughlin, Clarke and Miller, JJ., concurred; Scott, J., dissented.
Dissenting Opinion
This is an appeal from an order denying a motion to confirm the report of commissioners in condemnation proceedings and referring the matter back to the same commissioners for further consideration. The ground upon which confirmation was refused was that in the estimation of the court the award for damages was too large. This conclusion was arrived at, not because the commissioners had adopted any erroneous principle ■ in assessing the award, but merely because the court arrived at a different conclusion from that which the commissioners had arrived at upon the evidence taken by them. When confirmation of a report is refused upon this ground we are of opinion that new commissioners should always be appointed.
Assuming, as.we do in this case, that the commissioners acted conscientiously and .in accordance with their best judgment, and have given the subject the careful attention that its importance demands, it is not probable that upon the same or similar testimony to that which was presented before, they will to any appreciable extent modify their former views as to the damage caused by the improvement. The result will be either that they will report substantially the same damages, or, if they report less, that they will do so because they feel ■ constrained by the reason given by the court for resubmitting the question. In the one case nothing will be gained by the resubmission. In the other the property owners will not have received, what they are entitled to receive, the free and uncoerced judgment of the commissioners. Of course when the objection to a report is that the commissioners have adopted a wrong principle in estimating awards for. damage, or have ■ otherwise committed legal error, the foregoing remarks do not apply. If, therefore, the order appealed from is to be affirmed,
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to confirm the report of the commissioners granted. • ,
Order modified by sending proceeding back to new commissioners, and as modified- affirmed, with ten dollars costs and disbursements.