People ex rel. Lyon v. Nelson

We are hearing a cause instituted by a writ of certiorari to review the determination of the trustees of the village of Peekskill, a municipal corporation, which confirmed the award of commissioners appoiñted by the county court of the county of Westchester to ascertain and assess the damages claimed by owners of lands appropriated for the purpose of widening South street in that village, and to assess and apportion the damages on real estate to be benefited by the improvement. No question is raised as to the propriety of this proceeding, and no fault is found with the regularity of the proceedings to widen South street, down to the point where the commissioners made their determination. Among the lands to be acquired for the public improvement were two parcels belonging to the relator. One- parcel contains 138.8 square feet, and has a frontage on South street of 40 feet and an average depth of 3.47 feet. The other parcel contains 134 square feet, has a frontage on South street of 33.88 feet, and an average depth of 3.90 feet. South street is the main thoroughfare of the village, and the widening proposed was of one block. The buildings on the block are devoted to business purposes. With the exception of the relator and the Peekskill Savings Bank, a corporation, all the owners of property on the block ceded to the village corporation the land for street purposes. The property of the Peekskill Savings Bank was acquired for $1,200; the area acquired was 127.5 square feet. In the condemnation proceeding the relator called witnesses to prove the value of the parcels sought to be taken. On one parcel they placed valuations ranging from $1,734 to $2,082, and on the other parcel from $1,-675 to $2,010. Witnesses for the corporation placed valuations ranging from $550 to $2,000 on one parcel, and from $670 to $i,500 on the other. As to one parcel, testimony was received by the commissioners that the actual cost of removing a bay window and of restoring the front of the building after the removal would be at least $167; and as to the other parcel testimony was received that the actual cost of removing the front of the building and of restoring it would be not less than $396.50. For each parcel of property the commissioners awarded the relator $1, and, over the objection and against the protest of the relator, the trustees confirmed that award. The report contains the declaration that that amount represented the damages that the relator would sustain “after making due allowance for any benefit which the said E. De Motte Lyon might derive therefrom.” In discharging the duty of making an assessment for the improvement, they made this report :

“We do further report that in our judgment the whole of the damages awarded herein should be assessed, and become a charge upon the village of Peekskill at large, together with the costs and expenses of this proceeding.”

The defendants defend the report upon the ground that the charter of the village of Peekskill (chapter 117, Laws of 1883, tit. 7, § 6) authorized the commissioners to—

“determine and award to the owner or owners so claiming damages as aforesaid such damages as in their judgment such owner or owners will sustain by such improvement, after making due allowance for any benefit which such owner or owners may derive therefrom; they shall at the same time