123 N.Y.S. 1018 | N.Y. App. Div. | 1910
Lead Opinion
.It is conceded that all the steps were taken in dne and proper form leading up to the award of' damages in this proceeding, and the only question presented on this review is the alleged inadequacy of the award of $7,626, this being the amount testified to by the city’s own expert witness on the 21st day of November, 1905. The proceeding dragged along and on the 4tli day of June, 1908, the same witness was re-examined as to the value of the premises at that time, and he testified that owing to changed conditions the property was worth $9,531, while the witnesses called by the appellant, who filed objections to the preliminary report, reached as high as $16,357, the next lowest figure being $16,117. Notwithstanding the testimony of the city’s own witness that the property had increased in value nearly $2,000, and with nothing on the record to show any reason for questioning this testimony, the commissioners adhered to their original figure. The learned court at Special Term has confirmed this award, and the appellant comes to this court and asks for a reversal of the order.
It is not to be doubted that in condemnation proceedings 'damages are to be awarded as of the date when -the award is made (Matter of Brooklyn Union El. R. R. Co., 105 App. Div. 111), and if it was in fact true that the premises were worth considerably more in 1908 than they were in 1905 then it was the duty of the commissioners to recognize this fact and to make their award accordingly. There is no conflict in the authorities submitted on either side of this controversy. The rule is well established, as insisted by the respondent, that where commissioners are authorized or required to view the premises, and such view is made, the commissioners áre not bound by the testimony of experts, and that in the absence of matters in the record showing that improper rules have been adopted in arriving at the damages, the amount fixed by the commissioners will* not ordinarily be interfered with, but it is equally the law that where the record does show an improper application of rules to the determination of the damages, this court is justified in refusing to sanction the confirmation of a report. In other words, the power and'the duty to review the act of the court at Special Term in confirming or refusing to confirm a report of commissioners, presupposes authority in the Supreme
The order appealed from should be reversed and the matter should be sent to new commissioners to determine.
Thomas and Carr, JJ., concurred ; Burr, J., read for affirmance.
Dissenting Opinion
I dissent. The evidence clearly establishes that the commissioners viewed the premises at various times during the. course of the proceedings. I do not see how we can set aside their determination,. in view of that fact, upon the evidenee in this case., without overruling all of the decisions from Matter of Brook Avenue (8 App. Div. 294) to Matter of Simmons, Ashokan Reservoir (132 id. 575).
Order reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term for further disposition in accordance with opinion by Woodward, J.