88 N.Y.S. 947 | N.Y. App. Div. | 1904
But one ^question is presented upon this appeal, and that is whether the property owners were entitled to have the report of the commissioners set aside and the case sent back to the commissioners, to enable the property owners to cross-examine a witness called on behalf of the city who had testified as an expert to the value of the property taken in the proceeding. It appears that Charles A. Berrian was called by the city as an expert to appraise the value of the property taken; that he testified that the value of parcel No. 1, which belonged to the appellant, was $15,373.56. He was cross-examined by counsel for the property owners, and was subsequently recalled and again cross-examined by counsel for the appellant. The testimony being closed and all of the parties having submitted such testimony as they desired, the commissioners made their preliminary report on the 28th day of March, 1902, and on the 29th of March, 1902, and thereafter, caused to be published in the City Record a notice that ■ “ said abstract of estimate and assessment had been so filed, and that the Commissioners would receive objections thereto at their office on or before the 19th day of April, 1902, and would be in attendance at their office on the 23d day of April, 1902, for the purpose of hearing these objections.” To this preliminary abstract of estimate and assessment the petitioner filed objections upon the ground that the awards were not a just compensation for the taking of the said lands. Upon a hearing before the commissioners upon these objections, Berrian, who had testified as an expert on behalf of the city on January 31, 1899, was, on May 1, 1902, subpoenaed by the appellant to appear before the commissioners; whereupon counsel for the appellant sought to examine the witness as to evidence that he had given in other proceedings in relation to other property in the locality. Such cross-examination was objected to by counsel for the
We may concede that these questions would have been proper when the witness was under cross-examination before the taking of testimony was closed; but we think that after both the city and the owners of the property had closed the evidence, and the commissioners had filed their preliminary estimate, the owners of property were not entitled as a matter of right to further cross-examine witnesses who had been examined and cross-examined before the preliminary estimate had been made.
By section 979 of the charter of 1897 (Laws of 1897, chap. 378) the commissioners of estimate and assessment were authorized to take testimony presented to them under oath. Section 980 provides that the commissioners, after hearing such testimony and considering such proofs as may be offered “ shall, without unnecessary ■delay, ascertain and estimate the compensation which ought justly do be made by The City of New York to the respective owners, lessees, parties and' persons respectively entitled unto or interested In the lands, tenements, hereditaments and premises so required for the improvement; and make a just and equitable estimate and assessment also of the value of the benefit and advantage of such improvement to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, ^hereditaments and premises not required for the said improvement, •and. prepare an abstract of their estimate and assessment.” By section 981 the commissioners were required to deposit in the bureau of street openings in the law department, the abstract of their estimate and assessment at least thirty days before their report should be presented to the court for confirmation, which abstract should state the several sums respectively estimated for or assessed upon each of said parcels, with the name or names, claimant or ■claimants, so far as ascertained by said commissioners; and they were also required to publish a notice for fifteen days stating their intention to present their report for confirmation to the court at a
-The appellant having objected to the preliminary abstract of the commissioners, was undoubtedly entitled to produce evidence to. sustain the objection; but a further cross-examination of the witnesses who had testified on behalf of the city and whose testimony had been completed was in the discretion of the commissioners, and a refusal to allow such a further cross-examination was not a legal error which required the court to send the proceeding back to the commissioners-.
While undoubtedly the court had power under section 986 of the charter to refuse to confirm the report where the confirmation would be inequitable and unjust, and where for any reason it should appear that any party to the proceeding should be entitled to a ■ further hearing before the commissioners, to justify such action it must appear that the property owners had been deprived of a substantial right to which they were entitled or that it would be inequitable or unjust to confirm the report. In this case it appears that the appel
It follows that the order appealed from was right and it should be affirmed, with costs.'
Van Brunt, P. J., Patterson, McLaughmn and Laughlin, JJ., concurred.
Order affirmed, with costs.