128 N.Y.S. 1071 | N.Y. App. Div. | 1911
The report, which has been denied confirmation by the .court at Special Term, awarded to the trustees of the estate of Enoch R. Ware the sum of ‘$76,200 as compensation for the land taken and designated oh the maps as damage parcel Ho. 5. The learned court at Special Term has refused confirmation .of this report upon the grdund that the award was made upon the basis of lot values instead of the value of the tract taken as a whole, and, after a careful examination 'of the question, we are . fully persuaded that, , upon the merits, the case is governed by our decision in Matter of Simmons (141 App. Div. 120), and that.the report of the commissioners ought.not to have been set aside upon this ground. So far from the opinion of Mr. Justice Cullen in Matter of Daly v. Smith (18 App. Div. 194) giving sanction to the respondents’ theory of the case, we are . of the opinion that it forcibly recognizes the essential point of the appellants’ theory that the determination is to be made by the commissioners upon a viekv of the premises and a hearing of all of the testimony which is available, and that this requires that the availability of the premises for all practicable purposes-is to be taken into • consideration in determining the- present value. Rightly understood, there is nothing in- the utterance - of the court to warrant ¡the assumption that Mr. Justice Cullen laid down any rule which required that suburban property should be valued only upon the ¡basis of acreage. In the case then before the court the commissioners'had, apparently, accepted the estimates of values based tin the acreage, and the discussion of the court was merely directed to showing that in that, particular-case this was justified. ■
It is only upon the¡ hearing of an appeal from an order of confirmation that the court is authorized to grant a new hearing, the determination' of which will be final and conclusive upon the parties (Matter of Daly, supra), and it may be fairly ques- ■ tioned whether the appellants, in a legal sense, are aggrieved by an order of the coujrt which gives them a full opportunity to their day in court jto establish the value of their property. The duty of new commissioners is to grant “just compensation ” for the property taken, notwithstanding that the court at Special Term has rejected the report of a former commission and has laid down an erroneous rule for computing' that value. We may not assume ¡that commissioners will fail to observe their obligations under the Constitution (Art. 1, § 6) and laws of this State because of an error of law on the part of the court at Special Term. If this should be done, and the report of the commissioners should be confirmed by the court, an appeal would lie to this court from such “ appraisal and report of the commissioners,” and the matter would be returned to commissioners for correction. There; was. evidence before the original commissioners which would have justified a much larger award' than' was made, as well as a lower one) and it cannot now be . determined whether the appellants are aggrieved by the action
•The appeal should be dismissed, with ten dollars costs and disbursements.
Hirschberg, Burr and Rich, JJ., concurred; Jerks, P. J., taking no part:
Appeal dismissed, with ten dollars costs and disbursements.