In re the Department of Public Parks — 32 N.Y. St. Rep. 832

Majority

p. 832

In the Matter of the application of The Department of Public Parks to acquire title to lands.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

1. Eminent domain — Services or surveyor — Laws 1884, chap. 522.

The approval of the bill of a-surveyor by the commissioners appointed under chap, 522, Laws 1884, is not conclusive or final, but is subject to examination and action by the court which appointed them. The court may examine witnesses on that subject or direct a reference to take evidence necessary for intelligent action.

2. Same.

The extent of territory surveyed, the number of descriptions furnished,

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the time employed on the work and the salaries paid to competent surveyors for similar work, are all facts which may he considered in determining the reasonableness of the charge.

■3. Same — Evidence.

Testimony as to the number of maps made and the length of time employed in the work is proper and admissible.

4. Same.

Testimony as to what was done by another in a survey made by him and his report and the number of men employed and as to what it would have cost the department to do the work is immaterial and inadmissible.

Exceptions taken in behalf of Robert L. Waters to the opinion or report of a referee concerning compensation to be made for services and expenses of the exceptant.

John Whalen and George Bill, for exceptant; Franklin Bartlett, for Mayor, etc.

The reference was ordered to take proof and report the same to this court with the opinion of the referee thereon, concerning the services rendered and charges made therefor, by James 0. Lane and Robert L. Waters, in proceedings to acquire lands for public parks in the Twenty-third and Twenty-fourth wards of the city of Mew York, ana in adjacent parts of the county of Westchester. The 'report to which these exceptions have been filed was made upon the evidence relating to the ■charges of Robert L. Waters, who was a civil engineer and surveyor in the employment of the commissioners of estimate, and for subordinates employed by him under their authority and that of the law. The bill he rendered, at the charge of ten cents per lineal foot made by him, for the work done, with $116 for printing and binding, amounted to the sum of $106,998.10. And it received the formal approval of the commissioners. But this approval was by no means conclusive or final in its effect. For the results of the commissioners’ proceedings as they should, be and in fact were, stated in their report, was still subject to the examination and review of the court appointing them, and under which they acted. And it was, by § 2 of chapter 522 of the laws of 1884, which authorized and directed the proceedings, after hearing any matter which might be alleged against the report, empowered to confirm it in whole or in part, or refer it to the same or other commissioners, to reconsider the subject matter thereof, who should correct and revise it, or make a new report in the premises. And the report made on that reference was also subject to the same disposition and action on the part of the court. But the subject matter to which this authority related was the land for which compensation was intended to be made.

The ultimate object was to provide for the acquisition of its title, and the vesting of that title in the mayor, etc., of the city of Mew York. That is manifested by the section providing for this proceeding, whose sole end and object was the acquirement of the title, and the adjustment as the means for acquiring it of the compensation to be made for it to the preceding owners. And when the final confirmation should be reached, then the proceed- "

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ings were made conclusive for these purposes. And that this was the intention is disclosed by other provisions of the act directed to the attainment of that end, as well as by the second section directing the commissioners to make a just and true report of the loss and damage to the respective owners and others interested in the lands, and prescribing the proceedings to be followed for that purpose. It is true they were to- cause plans, surveys, maps, profiles, and other things to be made and prepared for their use, and in their report to include “ all costs and expenses for services, maps and other things.” But that part of the report was not declared to be conclusive, as its confirmation was-upon the title to the land. It was on the contrary by the ninth section directly subjected to the action and control of the court by so much of it as declared that the commissioners should “be-allowed the necessary expenses for clerk hire, surveys, survey maps and examination of titles and other, necessary expenses, a. sum to be allowed by the general term of the supreme court (in the) first judicial district.” This, as well as the other provisions of the act, had placed these expenses wholly and finally under the judgment of the court. And it was subject to that judgment that the direction was given to the commissioners by the fifth section to include these expenses in their report.

When this bill was brought before the court, and a confirmation of so much of the report as contained it was applied for, then it was necessarily empowered to take evidence concerning the justness of the charge. And that could be done either by witnesses being brought before and examined in the presence of the court, or, as is the ordinary practice in such-instances, directing a reference to secure the evidence necessary for intelligent action. And this course was adopted, as it well could be, to obtain the information essential to the judicious exercise of the power given to the-court over these charges.

Upon the reference the claimant himself, and other witnesses examined in his interest, as well as in the interest of the mayor, etc., attended and gave their evidence. And -the referee considered its effect to be that Mr. Waters was entitled to no more than-the sum of $45,000 for his own services, and $24,550 for his subordinates, and $116 for printing abstract papers and binding maps- and abstracts. And it is to this reduction of bis bill that the exceptions have been directed, which are now before the court

The evidence of Mr. Waters himself was, that the account was-reasonable in its amount. And he was confirmed generally in that estimate by the witness George W. Birdsall, and also, to a fair extent, by James R. Groes. But the witnesses examined on behalf of the mayor, etc., did not by their evidence confirm this view. According to their .judgment Mr. Waters would be reasonably compensated by the allowance of a much smaller amount than he had charged and was approved by the commissioners, who, it should be said, do not appear to have examined into the propriety of the charge or done any more than to acquiesce in the account as Mr. Watei-s made it out-

And the-facts established by the proof create the probability

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that these witnesses more nearly approached the accuracy of the case than did Mr. "Waters and the witnesses produced by him. For the full extent of the land surveyed in the different localities where his services were rendered was a fraction under 1,750 acres. And the number of descriptions furnished him were 980. And the time by him devoted to the business was three years and nine months. These facts are entitled to have an important effect in the determination of the amount of his compensation, which even where the public are to supply it, can legally be no more than what shall appear to the court to be reasonable. So far as yearly salaries are stated to have been paid to competent civil engineers and surveyors, they are very far below the amount charged by Mr. Waters. And with the other facts proved, and all the estimates mentioned by the witnesses who were examined, fairly indicate that the amount mentioned by the referee will be an ample remuneration for the services udfich have been rendered, and are now in controversy. The allowance reported for Mr. Waters is the sum of $1,000 a "month, which exceeds that of the chief officers employed in the government of this state. And it certainly should not be increased by the action to be taken by the court in this case.

A number of exceptions are brought in question which were made by the referee in the progress of the hearing. The first of these relate to the number of maps made. And the answer should have been taken, although it can be seen by a consideration of the evidence previously given what the number was. The same observation is also applicable to the exclusion of the answer to the question concerning the length of time Mr. Waters was engaged in rendering his services. And so it is as to the capacity in which he was engaged.

What was done by Mr, Birdsall in a survey made by him and his report, and the number of men employed, were facts having no relevancy whatever • to the hearing before the referee, and the answers to the questions directed to those subjects were rightly excluded. It was also unimportant to figure what it would have cost the department to do the work, for it would have been immaterial and at most conjectural. There was nothing improper in allowing Mr. Yogél to state that he was familiar with the work of the surveys. And consistency in the rulings required that his answers as to the cost of surveys to the department should have been excluded. But the report should not on that account be disturbed, for the evidence could be attended with no other effect than to increase the bulk of the printed casef It could have no important effect whatever' over any part of the present controversy. That is also true as to the workmanship of the maps. The evidence obtained from Stephenson Towle was competent, for it directly affected the value of what was included in the account of Mr. Waters. Neither of the objections which have been made justify any interference with the report of the referee. But it should be confirmed, and the amounts mentioned by him paid as a full and complete remuneration for .all the charges contained in this account. Instead of being below

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what they should be, the allowances are both generous and liberal, under the proofs, and probabilities affecting them.

Van Brunt, P. J., concurs.