77 N.Y.S. 416 | N.Y. App. Div. | 1902
The defendant instituted, for the purposes of its railroad, proceedings under the statute (Code Civ. Proc. §§ 3351-3384) for
We have carefully examined the evidence bearing upon the damages awarded, and while it might be more satisfactory if a less" sum had been awarded, nevertheless, it cannot be said that there is no basis for the award or that the evidence does not sustain it, nor can it be said that the commissioners in making it did not proceed strictly in accordance with the rules governing proceedings of this character. The rule which governs upon the review of an award of commissioners in condemnation proceedings is well settled, and that is, that every intendment is in favor of the action of the commissioners, and' their report will not be disturbed unless the court can clearly see that they have proceeded upon an erroneous principle or have been influenced by passion or prejudice, or have overlooked or disregarded the evidence, and for that reason injustice has been done. (Manhattan Ry. Co. v. O’Sullivan, 6 App. Div. 571; S. C. affd., 150 N. Y. 569; Matter of New York Elevated R. R. Co., 35 N. Y. St. Repr. 944.) When this award is tested by this rule, it at once becomes apparent that no facts are set forth in this record which would justify the court in interfering with the report • of the commissioners. Witnesses were produced by the respective parties, and while their estimates of value differed very materially, "it-was peculiarly for the commissioners to determine, which they would, if either, believe, and in addition to this they were not confined to the testimony of the witnesses or the evidence adduced before them, but they had the right, as they did, for the purpose of ascertaining and fixing the damages, to view the premises. It cannot, therefore, be said that the damages awarded are excessive, or that injustice has been done to the appellant.
The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.
Van Brunt, E. J., O’Brien, Ingraham and Hatch, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.