137 N.Y.S. 329 | N.Y. App. Div. | 1912
■ This is an appeal from an order of the Kings Comity Special Term refusing to confirm the report of commissioners of
The proceeding was brought by the commissioner of water supply, gas and electricity, under the provisions of the Greater New York charter, for the condemnation of a strip of land for aqueduct purposes, varying from 100 feet to 200 feet in width, and about 9 miles long, and running from Valley Stream to Merrick, and for most of the distance along the southerly line of the Montauk division of the Long Island railroad.
The only question in this case is whether the order shall be affirmed or the appeal dismissed upon the ground that the order is not appealable, for the determination of the commissioners was clearly without justification.
George W. Loft, the appellant, is the owner of a plot of ground bounded on the south by the Merrick road and on the north by the Long Island railroad. It is approximately 1,200 feet wide in the front and in the rear, and about 1,170 feet deep on each side, and contains about forty-two acres. The strip taken is in the rear, immediately adjoining the railroad. The width of the plot will not be diminished by the taking. Its depth will be reduced to about 1,000 feet. Appellant purchased this property from two former owners. The first piece, consisting of about twenty-six acres, was purchased by him in February, 1907; the second piece, consisting of about sixteen acres, was purchased in September óf the same year. Title to the land condemned vested in the city on December 15, 1908, a little more than a year thereafter. The aggregate purchase price of the property was $68,000.. At the time of the purchase there was upon it a house, designed for and since used by the owner as a country residence, some outbuildings and some ponds or lakes. After purchasing it, the present owner expended in improving the property between $30,000 and $40,000. The lakes were cleaned out, new coping put around them, new bridges built, some of the old buildings torn down and rebuilt, the ice house repaired, a new bowling alley erected, and the interior of the dwelling house was “gutted * * * and reconstructed.” There was also some grading done upon the ground. The exact amount of the expenditure therefor
While we recognize the rule that ordinarily the report of the commissioners will not be disturbed because the opinion of the court differs from that of the commissioners as to the amount of damage, this sum is, as characterized by the Special Term, so “fanciful and extravagant” that the court was bound to interfere. " . '
Upon the question of the appealability of the order, we think much might be said in favor thereof; within the reasoning Of Manhattan R. Co. v. O’Sullivan (6 App. Div. 571; affd. on opinion below, 150 N. Y. 569). Notwithstanding this, we are of the opinion that the question is not an open one in . this court. We see no escape from the binding force of the
The appeal should be dismissed, with ten dollars costs and disbursements.
Hirschberg, Thomas, Woodward and Rich, JJ., concurred.
Appeal dismissed, with ten dollars costs and disbursements.