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Brooklyn Elevated Railroad v. Flynn

69 N.Y. St. Rep. 677 Court N.Y. Decision date 1895-10-29 English

Delivered by Andrews, Ch. J.

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p. 677
In the Matter of the Petition of the Brooklyn Elevated Railroad Company, App’lt, Relative to Acquiring Title to Real Estate, etc., v. John Flynn, Owner of Parcel No. 26, Resp’t.[1]
(Court of Appeals,
Filed October 29, 1895.)

Headnote

1. Appeal—Condemnation peoceedings.
No appeal lies to the court of appeals from the order of the general term, affirming the order of the special term, confirming the report of commissioners appointed under chap. 606 of 1875, where no question of jurisdiction is raised, and only an error of law presented.
p. 678
2. Same—Ebbob op law.
Where there are three buildings on a tract of land, taken by condemnation proceedings under chap. 608 of 1875, the question whether the depreciation of the part, on which one building stood, should be set off against the benefits to the others, is one of law.
Appeal from, order of the general term of the supreme court in the second judicial department, which affimed a final order of the special term confirming the report of commissioners of appraisal in condemnation proceedings instituted under the Rapid Transit Act (Laws of 1875, chap. 606).
Frederick P. Delajkld, for app’lt; Stephen M. Hoye, for resp’t.

No appeal lies to this court from the order of the general term affirming the order of the special term confirming the report of the commissioners of appraisal. • The condemnation proceedings were instituted under the provisions of the Rapid Transit Act, ch. 606 of the Laws of 1875. The first report of the commissioners was sent back for correction on the application of the petitioner, and was corrected in certain particulars and returned to the court at special term and was confirmed. The petitioner appealed from the order of confirmation to the general term, where the order was affirmed. The petitioner seeks in this court to reverse the order of affirmance, on the ground'that the commissioners treated the property of the respondent not as a whole, but as consisting of three distinct parcels. The case shows that there was one tract on which there were three separate buildings, and the claim is that the depreciation of one piece should have been set off against the advantage to the others. The question does not go to the jurisdiction of the commissioners, and, upon the claim made, presents an error of law simply. We held in the case of The Metropolitan Elevated Railroad Company, 128 N. Y. 600 ; 88 St. Rep. 881 , that condemnation proceedings under . the Rapid Transit Act were governed by the rule applicable to proceedings under the General Railroad Act of 1850, and that the determination of the supreme court at special term confirming the report of commissioners is final, and that no appeal therefrom to tin's court can be taken either for error of law or fact. A similar determination was made in The Matter of the Commissioners of the State Reservation at Niagara Falls, 102 N. Y. 734 ; 2 St. Rep. 533 , under a statute nearly identical, so far as respects this question, with the Rapid Transit Act. If the case presented a question of jurisdiction the rule might be different. Matter of S. B. R. R. Co 143 N. Y. 253 ; 62 St. Rep. 150 .

The appeal should be dismissed.

All concur.

Appeal dismissed.

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