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Harlem River & Portchester Railroad v. Reynolds

50 A.D. 575 Court N.Y. App. Div. English

Delivered by Woodward, J.: •

Contents

Majority

p. 575
The Harlem River and Portchester Railroad Company, Appellant, v . James L. Reynolds, Respondent,. Impleaded with Others.

Headnote

Award of commissioner's in condemnation proceedings — what must be shown to set it aside —presumption that the commissioners acted within the law.
An award of commissioners appointed in a condemnation proceeding will not be set aside for inadequacy or on the ground that it is excessive, unless it is palpably wrong in either i-espect; nor will it be set aside for mere errors in the receipt or exclusion of evidence, or for an error of law other than the adoption of an erroneous principle in estimating the compensation.
Where the report of the commissioners does not state the facts which were considered in determining the amount of the award, and the plaintiff makes no effort to secure a correction of the record or to cause a supplemental report to be made, it will be presumed, in the absence of anything to the contrary in the record, that the commissioners acted within the law and that the award is supported by the facts which came within the scope of their inquiry.
Appeal by the plaintiff, The Harlem River and Portchester Railroad Company, from so much of a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 21st day of October, 1899, in condemnation proceedings, as directs “ that compensation shall be made to the said James L. Reynolds, the owner of the said property, by the plaintiff, pursuant to the determination of the said commissioners, in the sum of one thousand six hundred and fifty dollars,” and also from so much thereof as directs that, before the plaintiff is entitled to enter into possession of the property condemned, it shall pay to the defendant the above-mentioned compensation', with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 9th day of October, 1899, confirming the report of the commissioners.
p. 576
Henry W. Taft, for the appellant.
Arthur M. Johnson, for the respondent.

An examination of the record in this proceeding discloses nothing to take this case outside of the rule that an award by commissioners will not be set aside for inadequacy or because excessive unless the award is palpably wrong in either respect. (Matter of Daly v. Smith, 18 App. Div. 194 ,196, and authorities there cited.) Nor will it be set aside for mere errors in the receipt or exclusion of evidence. To justify the reversal of an award for error of law it must be. made to appear that the commissioners adopted an erroneous principle in estimating the compensation. (Matter of Daly v. Smith, supra.)

The award in this case, considered purely from the evidence as found in the record, might be thought excessive, and yet we would be reluctant to hold that there was not evidence before the commission which would support the finding if we left out of consideration wholly the fact that the law makes it the duty of the commissioners to personally view the premises and to act upon their own judgment, aided by the evidence or other sources of information in reaching a conclusion. (Troy & Boston R. R. Co. v. Lee, 13 Barb. 169 .) The finding of the commissioners does not state the facts which were taken into view in reaching a determination as to the value of the property, and the presumption must be, in the absence of anything to the contrary appearing in the record, that they acted within the law and that the award is supported by the facts which came within the scope of their inquiry. The plaintiff made no effort to secure a correction of the record or to cause a supplemental report to be made by the commissioners under the provisions of section 3382 of the Code • of Civil Procedure (Board of Water Commissioners v. Shutts, 25 App. Div. 22 ), and we are forced to conclude, under the authorities, that the report of the commissioners and the order of confirmation should be affirmed.

The order appealed from should be affirmed, with costs.

All concurred.

Final order affirmed, with ten dollars costs and disbursements.

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