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In re Simmons

122 N.Y.S. 874 Court N.Y. App. Div. Decision date 1910-05-04 English

Delivered by SEWELL, J.

Contents

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p. 874
In re SIMMONS et al., Board of Water Supply of New York.
(Supreme Court, Appellate Division, Third Department.
May 4, 1910.)

Headnote

1. Eminent Domain (§ 262[2] )—Compensation—Review.
The appellate court will not interfere with the report of commissioners of appraisal in condemnation proceedings because of inadequacy or excessiveness of the compensation awarded, unless the amount is so great or so small as to be palpably unjust. •
[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 681-686; Dec. Dig. § 262.[2] ]
2. Eminent Domain (§ 262[2] )—Compensation—Review.
The appellate court will not set aside the report of commissioners of appraisal for mere errors in rulings on evidence, and to justify the reversal of an award for error of law it must appear that the commissioners adopted an erroneous principle in estimating compensation. •
p. 875
3. Eminent Domain (§ 234[2] )—Award of Compensation—Report of Commissioners of Appraisai,.
Where, in proceedings under Laws 1905, e. 724, and the amendatory act, for the acquisition of land by the city of New York for a water supply, the evidence before the commissioners of appraisal and their report showed that the ownership of a tract of land was at the time of the taking subject to a grant to a telephone company for a right of way, the report of the commissioners fixing the compensation for the tract, subject to the easement of the telephone company of undetermined value, was defective for failing to contain a statement of the sum determined on as compensation to be made to the owner, as required by section 13 of the act, and the award must be set aside and the matter remitted for determination after amount to be paid to the owner.
[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 234.[2] ]
Appeal from Special Term, Ulster County.
Application by J. Edward Simmons and others, constituting the Board of Water Supply of the City of New York, to acquire real estate for the city under Laws 1905, c. 724, and the act amendatory thereof, for the purpose of providing an additional supply of water for the use of the city. From so much of an order as confirms the separate report of the commissioners of appraisal, so far as such report affects a specified parcel, Jacob Mayer, the owner thereof, appeals.
Reversed, and award of commissioners set aside, and matter remitted to the commissioners.
See, also, 133 App. Div. 935 , 118 N. Y. Supp. 1142 .
Argued before SMITH, P. J., and KELLOGG, COCHRANE, SEWELE and HOUGHTON, JJ.
Jerome H. Buch, for appellant.
John J. Linson, for respondent.

It is well settled in this state that an appellate court will not interfere with the reports of commissioners of appraisal in condemnation proceedings for inadequacy, or because excessive, unless the amount awarded is so great, or so small, as to be palpably unjust. 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 compensation. Matter of Daly v. Smith, 18 App. Div. 196 , 45 N. Y. Supp. 785 ; Harlem River & Portchester R. R. Co. v. Reynolds, 50 App. Div. 575 , 64 N. Y. Supp. 199 .

After a careful examination of the evidence in this proceeding we are not convinced that the commissioners adopted an erroneous principle of valuation, or that injustice has been done the claimant. We think, however, that the report of the commissioners of appraisal is erroneous, in that it does not contain a statement of the sum estimated and determined upon as just and equitable compensation to be made by the city to the owner, as required by section 13 of the act (Laws 1905, c. 724) under which the land was taken. The evidence before the commissioners shows, and their report states, that the ownership of the land, at the time it was taken, was in the appellant, subject to a

p. 876
grant to the Citizens’ Standard Telephone Company of- a right of way-for a telephone line over said premises, and that:
“The amount ascertained and determined by us as aforesaid to be paid to the-owners thereof and the persons interested in said land for the acquisition of the fee of the premises designated on said map as parcel No. 54, and for all damages sustained or which may be sustained by them by reason of the acquisition, use, and occupation of said fee for the purposes indicated in said act, is-the sum of two thousand eight hundred dollars ($2,800), as follows: Jacob. Mayer, owner, twenty-six hundred dollars ($2,600) subject to easement of the-Citizens’ Standard Telephone Company of undetermined value; Winn & Yam Steenburgh, the owners of the growing timber standing o.n said premises, two. hundred dollars ($200).”

It is apparent that the effect of this award is to compel the appellant to await the determination of the compensation to be made to the' Telephone Company. It does not estimate and award the damages to. which the appellant is entitled, and therefore it does not comply with, the law.

It necessarily follows that the order appealed from, in so far as the-same relates to the amount awarded for parcel No. 54, should be reversed, and the report or award of the commissioners set aside, and! the matter remitted to the commissioners for a determination of the-amount to which the appellant is entitled, with $10 costs and disbursements to the appellant. All concur.

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