In re Titus Street

It is conceded that all the steps were taken in due and proper form leading up to the award of damages in this proceeding, and the only question presented on this review is the alleged inadequacy of the award of $7,626, this being the amount testified to by the city’s own expert witness on the 21st day of November, 1905. The proceeding dragged along, and on the 4th day of June, 1908, the same witness was re-examined as to the value of the premises at that time, and he testified that owing to changed conditions the property was worth $9,531, while the witnesses called by the appellant, who filed objections to the preliminary report, reached as high as $16,357, the next lowest figure being $16,117. Notwithstanding the testimony of the city’s own witness that the property had increased in value nearly $2,000, and with nothing on the record to show any reason for questioning this testimony, the commissioners adhered to their original figure. The learned court at Special Term has confirmed this award, and the appellant comes to this court and asks for a reversal of the order.

It is not to be doubted that in condemnation proceedings damages are to be awarded as of the date when the award is made (Matter of Brooklyn Union El. R. R. Co., 105 App. Div. 111 , 93 N. Y. Supp. 924 ), and if it was in fact true that the premises were worth considerably more in 1908 than they were in 1905, then it was the duty of the commissioners to recognize this fact and to make their award accordingly. There is no conflict in the authorities submitted on either side of this controversy. The rule is well established, as insisted bf the respondent, that where commissioners are authorized or required to view, the premises, and such view is made, the commissioners are not bound by the testimony of experts, and that in the absence of matters in the record showing that improper rules have been adopted in arriving at the damages, the amount fixed by the commissioners will not ordinarily be interfered with, but it is equally the law that where the record does show an improper application of rjiles to the-determination of the damages, that this court is justified in refusing to sanction the confirmation of a report. In other words, the power and the duty to review the act of the court at Special Term, in confirming or refusing to confirm a report of commissioners, presupposes, authority in the Supreme Court to determine whether the constitutional rights of individuals to just compensation for th"e property taken for public purposes have been met. In the present case the testimony of one Ryan, called by the city of New York, the moving party in taking the premises of the appellant, appears to have been accepted" in 1905 as controlling; his exact figures were adopted in the preliminary report. This action on the part of the commissioners must, be-looked upon as an expression of their confidence in his judgment and integrity at that time. More than two years later, with no fact appearing in the record to discredit this same witness, he testified on behalf of the city of New York that the premises were worth nearly $2,000-more, owing to changed conditions, and without a particle of evidence in the record to combat this testimony, and with the appellant’s witnesses placing the figure far above those named by Ryan, the commis