p. 361In re CHAPIN et al. In re COHN et al.(Supreme Court, General Term, Second Department.Headnote
Condemnation Proceedings—Review of Award.The report of commissioners in condemnation proceedings will not be set aside except for error of law, or for fraud, bias, etc., on the part of the commissioners.
Appeal from special term, Kings county.
Proceeding by Alfred C. Chapin and others to ascertain and appraise the amount of damages to property by reason of the erection of hospitals in the town of Flatbush for persons suffering from contagious diseases. Prom an order confirming the report of the commissioners, Moritz Cohn and Patrick J. Kennedy appeal. Affirmed.
Argued before DYKMAN, PRATT, and CULLEN, JJ.Jeroloman & Arrowsmith, for appellants.
Albert Gr. McDonald (Howard 0. Wood, of counsel), for respondents.
It is not necessary to discuss at length the motion made herein to dismiss the appeal, as the case is before the court, and may as well be examined. Neither will we notice the fact that no certificate is attached to the case that it contains all the evidence, in view of the statement which is made that it contains all the material evidence upon the matter involved therein. No error of law on the part of the commission seems to be raised, but the report is sought to be set aside upon the ground that the award of damages is too small, and against the weight of evidence, and that the act under which the proceedings were instituted is unconstitutional. As' to the first, it is only necessary to suggest that the sworn statements of witnesses are not the only evidence in the proceedings. The commissioners viewed the premises, and arrived
p. 362at their conclusions from such inspection as well as from the statements of witnesses. There was no refusal on the part of the commission to hear all the testimony brought forward by the respondents, and, so far as appears, it was duly considered. It is impossible for the court to say that the award is not adequate. The practice is too well settled by a long line of decisions that the court will not interfere and set aside a report of such a commission except for some error of law, or upon proof of fraud, or such glaring imperfection in the report, either for inadequacy or excessiveness, as shocks common sense, and implies bias, prejudice, misconduct, or want of judgment on the part of the commission. The case is bare of any proof to sustain the contention of the appellants that the award is in any respect illegal, or that it is against the weight of evidence. As to the unconstitutionality of the act of the legislature under which the proceeding was taken, it is only necessary to say that the points of the appellants make no suggestion, except that the award was not large enough in amount to give them just compensation. The constitutionality of an act of the legislature does not depend upon the amount of damages, but must be determined by an inspection of the act itself. Report confirmed, with costs. All concur.