77 N.Y.S. 566 | N.Y. App. Div. | 1902
This appeal is from an order denying a motion made by a property owner to vacate and set aside proceedings taken for the purposes of acquiring title to certain land for a public street in the city of Yew York, and from an order which confirmed the final report of the commissioners of estimate and assessment in reference to the property taken.
The premises affected by the appeal lie upon the' easterly shore of and extend into the Harlem river, between high-water mark and the bulkhead line, as established by the United States government in 1890. The appeal involves what is known oh the damage map-as lots Yos. 2 and 3, the appellant claiming title to the latter,, together with an easement, for the purposes of passage and repas-sage over the former. The proceeding was instituted by the city of Yew York by and through the board of street opening and improvement, and one of the principal grounds urged for the reversal .of the order is that the court did not acquire jurisdiction, inasmuch as-the proceedings were instituted and prosecuted by such board, and that under the statute wharf property, of which the appellant’s consists, can only be acquired through proceedings taken by the department of docks. After examination of this objection wé have reached the conclusion that it is not well founded. The city of. Yew York, acting through the board of street opening and improvement, had the right to take the same for public purposes and in the-manner here adopted. The appellant’s property consists of a wharf on the easterly side of the Harlem river, upon which- has been erected a building, piers and bulkhead. The commissioners of estimate and assessment awarded as damages to unknown owners for the. taking of parcel Yo. 3 the, sum of $4,920.75, and as interest
We are of the opinion that the order is right, except in one respect, and that' is as to the amount of damages awarded for parcel No. 3. The evidence, inasmuch as a question was raised as to the appellant’s title, was' sufficient to justify the commissioners (under section 989 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chapter 660, Laws of 1893) in making the award to unknown owners. This section provides that: “ In all and each and every case and cases, where the owners and parties interested, or their respective estates and interests, are unknown, or not fully known to the said commissioners, it shall be sufficient for them to estimate and assess and to set forth and state in their said report, in general terms, the respective sums to be allowed and paid to, or by the owners and proprietors generally, * * * without specifying the names of the estate or interests of such owners and proprietors and parties interested or of any or either of them.”
The damages, however, it seems to us, are inadequate, in view of the evidence taken. The commissioners awarded for the damages sustained by the owners of parcel No. 3, as hereinbefore stated, $4,920.75. The record shows that the wharf upon this parcel, as originally constructed, cost $2,500 ; that in 1886 repairs were made thereto which cost upwards of $3,000, and' in 1894 further repairs were made which cost over $800, showing the amount expended upon the wharf alone to have been something more than $6,000. The witness Edwards, a contractor*, testified that it would now actually cost, to construct the stone work and filling in and about the wharf, over $6,000, and that it was at the present time worth that sum. This
We are of the opinion that the commissioners failed to take these facts into consideration or to give effect to the evidence. The cost of the improvements, of course, is not to finally fix or determine the amount to be. awarded, but only to be considered with the other evidence offered, bearing upon-and fixing the value.
We are of the opinion, therefore, that the order appealed from, in so far as the same relates to the amount awarded for parcel No. 3, should be reversed, with costs, and the matter remitted to the commissioners for further action bearing upon that subject.
Van Brunt, P. J., Patterson and Laughlin, JJ., concurred.
Order reversed, with costs, and the matter remitted to the commissioners for further action.