13 N.Y.S. 864 | N.Y. Sup. Ct. | 1891
It has been determined in this action that the plaintiff was entitled to recover from the deféndant the value of the property which was taken by the'defendant in the.construction of its new bulk-head wall in front óf plaintiff’s bulk-head, and the reference which has resulted in the report now before us was to take proof and report the same with his opinion as to the value of the property so taken, both at the time of the taking of the property and rIso at the time of the hearing before the said referee. The referee, having heard the proofs, reported that in his opinion there was no difference in value between the time of the taking of the property and the time of the hearing, and reported in favor of the plaintiff for a very small amount of the sum which was claimed by him; and the question which comes before this court upon the presentation thereof is, what judgment should be rendered upon the facts established? The claims of the parties were very wide apart; and it seems to us, upon an examination of the evidence, that the investigation has proceeded to a considerable extent upon an erroneous theory. It seems to be considered that, as this right to-the bulk-head was a right to collect wharfage and cranage, that therefore the measure of compensations to be paid to the plaintiff was to be necessarily limited to a capitalization of the amount which might be received at such bulk-head for wharfage and cranage; and in the opinion of the learned referee very copious references are made to the opinions of the court óf appeals in these bulk-head cases to sustain this view. We think, however, that these opinions to not bear this' construction, but that the language used is to be interpreted in view of the question which was being discussed by the court, and presented at the time.
In view of the condition of the evidence in this case at the time it was submitted to the learned referee, we concede that it was impossible to make a just and fair estimate of the value of these rights. The evidence upon the part of the plaintiff undoubtedly gave a greatly exaggerated estimate of the value of these privileges; and the estimate on the part of the defendant, on the other hand, ridiculously small. The plaintiff does not seem to have been entitled to receive an award as large as is claimed by him; neither was the city to be allowed to appropriate this property for the mere bagatelle of the capitalization of the wharfage rights. There was evidence offered, however, which was stricken out by the learned referee, which might have afforded a fail-ground upon which an estimate of value might have been founded. The ■plaintiff offered in evidence the reports of the dock department, showing that they had bought what in some instances was described as “bulk-head property and wharf rights” and in others “bulk-head and wharf property” at various places upon the North river. This evidence was objected to solely "upon the ground that the deeds should be produced, as they might show that the property referred to in the report comprised more than that which had been taken from the plaintiff. This objection was sustained, and the offer of evidence was refused. This, we think, was error. If the plaintiff had a right to show these facts upon the question of .the value of these rights, then this evidence was competent; and if it was to be limited it was the defendant who was called upon to limit the same. The nature of the evidence is not objected to; but the only objection is that the deeds should be° produced. Now, if a party makes an admission that he has bought certain property at a certain price, that admission is evidence; and if he wants to limit the .admission by showing that the property is different from that which the admission would imply, he has to offer evidence to show the limitation. Thus it would appear that evidence which was very important in determining the value of these rights was excluded from consideration by the referee; and, such evidence not having been admitted or considered, and not being in the record, as far as this court is concerned, it cannot be considered by us, because, if the evidence is to be considered, the defendant should have the opportunity to show that notwithstanding these admissions the property purchased was differently situated, and of a different character from that taken -from the plaintiff, and that consequently the evidence could have no bearing upon the question under investigation. The value of this evidence is peculiarly great in a case like the one at bar, where it appears that it is difficult to fix a market value dependent upon actual transactions, these rights not being the subject of frequent barter and sale, so as to enable parties familiar with the market to speak from actual transactions, but their opinions being of necessity largely dependent upon ideas to some extent speculative. We think, therefore. thatthere having been an exclusion of evidence which was competent, and