In re Thompson — 15 N.Y. St. Rep. 906

Majority

p. 906

In the Matter of the Petition of Hubert O. Thompson, Commissioner of Public Works of the City of New York, for the Appointment of Commissioners of Appraisal, under Chapter 490, of the Laws of 1883.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Eminent domain—Commission dor appraisal—Report op—When same MAT BE SET ASIDE.

The court is not justified in setting aside an award, unless the inadequacy is gross or the commissioners have errred in the legal principles upon which they have acted, and the award will not be set aside for inadequacy when they have not proceeded upon an erroneous principle.

Henry W. Beekman, counsel for the corporation, resp’t; Herman Drislor, for John Drislor et al., app’lts.

—This appeal raises only the question of the adequacy of the award made by the commissioners for appellant’ s land. It is not claimed that the commissioners committed legal error in the admission or exclusion of evidence or in adopting a wrong principle in making their award. The appeal, therefore, presents a question of fact. It is settled by a long and unbroken line of authorities that the award of commissioners will not be set aside for inadequacy where they have not proceeded upon an erroneous principle, unless the inadequacy is gross. Matter of William and Anthony Streets, 19 Wend., 694 ; see, also, 48 Barb., 11 ; 16 Abbott, 56.

The reason of the rule proceeds from the impossibility of properly reviewing the determination of commissioners who •act not only upon the evidence before them, but also on their personal knowledge of values and examination of the

p. 907

property. This case does not come within the exception to the general rule. The testimony as to values varied greatly. The commissioners accepted neither the value placed on the land by the petitioner’s witnesses nor that claimed by the owner, but fixed the value between the two The exceptional sales of lots during a period of years and the price brought on such sales, was not so conclusive as to value that the refusal of the commissioners to allow the same rate for the land now taken is to be considered. While the evidence would have sustained a higher award, it cannot be said that the award actually made is manifestly inadequate.

Order and appraisal appealed from should be affirmed, with costs.