In re the New York, Lackawanna & Western Railway Co.

63 How. Pr. 265 | N.Y. Sup. Ct. | 1882

Smith, P. J.

The allegations of irregularity on which the motion to set aside the report was based are fully met by the opposing affidavits. The appellant expressly waived the right to produce and examine witnesses and consented with the counsel for the railroad company that the commissioners might act upon a view of the premises. The commissioners went to the premises together and viewed the premises, the owner being present, one of the commissioners stating to him the legal rule of damages in such cases, and he stating to the commissioners the items of damage claimed by him. The circumstance that during a part of the time while the commissioners were on the premises one of them was separated from the others is of no moment, provided each viewed the premises sufficiently to enable him to judge of the amount of the damages, and provided the sum arrived at was the result of their joint deliberations, as appears to have been the case.

Nevertheless, it is apparent from the affidavit of Mr. Long-well that in declining to produce witnesses he acted upon a misapprehension as to his legal rights, founded upon erroneous information derived by him from a person not named, to the effect that he would be entitled to a rehearing, as a matter of right, before other commissioners, and that on such rehearing he could examine witnesses. He swears that he told the commissioners he was informed he had that right, but it is clear from the affidavits of the commissioners that if he did tell them, they did not so understand him. Tet the fact that he acted upon erroneous information as to his legal rights is a circumstance to be considered, and if he was prejudiced thereby it is a ground for relief.

He alleges that the sum allowed him is much less than the damages he will sustain. The sum allowed is $3,500, and he produces affidavits tending to show that the damage will amount to at least $5,000, one affiant putting it as high as $6,500.

The respondents produce about an equal number of affidavits to the effect that the sum allowed is full compensation. But this is by no means conclusive against the appellant. It appears from the manner in which the proposed route of the railroad crosses his farm that the damage will be serious, and of a character difficult to estimate, and in regard to which witnesses of equal intelligence and candor, with the same opportunity of judging, will be likely to differ widely. In short, the case, as it seems to us, is one in which it is eminently proper that witnesses should be examined, and it is to be inferred from a statement contained in the affidavit of Hr. Stevens, the only lawyer upon the commission, that he preferred to hear evidence in regard to the claim for damages. • He so expressed himself to Hr. Longwell, and the omission of the latter to produce witnesses is inexplicable except upon the idea that he was acting upon erroneous information and advice, as he alleges.

We are therefore inclined to the opinion that the appellant is entitled to the relief asked for by him, on the ground that he was misled to his prejudice by erroneous information as to' his legal rights.

Ho blame is to be imputed to the commissioners or the railroad company or anyone acting for the company, nor need it be in order to entitle the appellant to relief. Even in mortgage cases, where the property is sold to the mortgagee for an inadequate price, the fact that the mortgagee was misled by a third person and did not attend the sale, has been held sufficient ground for opening the sale (Tripp agt. Cook, 26 Wend., 143).

The notice of motion being not only for relief on specific grounds, but also for “other” or general relief, is broad enough for the purpose.

Our conclusion is that the orders appealed from should be reversed, and the motion made by the land owner at special term he granted on condition that he pay to the railroad company the costs and disbursements of the hearing already had before the commissioners, to he taxed, and also ten dollars costs and the disbursements of this appeal, and ten dollars costs of the motion at special term — otherwise, the orders appealed from are affirmed, with ten dollars costs and disbursements of this appeal to the respondent.

Hardin and Haight, JJ., concur.

So ordered.