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In re Application of Collis

Supreme Court of New York, Appellate Division

May 5, 1911

In the Matter of the Application of CHARLES H. T. COLLIS, Commissioner of Public Works of the City of New York, for and on Behalf of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Certain Pieces or Parcels of Land, etc., for the Purposes of Sewerage and Drainage, etc., from Amsterdam Avenue at Fort George to the Harlem River, in the Twelfth Ward of the City of New York. ELIZA H. MCCULLOUGH and Others, Appellants; THE CITY OF NEW YORK, Respondent.

Page 383

APPEAL by Eliza H. McCullough and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of April, 1910, denying a motion for an order confirming the report of commissioners of estimate and assessment.

COUNSEL

Frederic B. Jennings, for the appellants.

L. Howell La Motte, for the respondent.

INGRAHAM, P. J.:

I agree with Mr. Justice SCOTT that where confirmation of a report is refused upon the ground stated by the learned justice at Special Term new commissioners should always be appointed, and if the refusal to confirm the award is affirmed that the order should be modified by appointing new commissioners, instead of sending it back to the commissioners whose award was not confirmed. An examination of the expert testimony in this case seems to show that the very great difference of opinion was based largely upon a difference as to what this property could be in the future used for, and what it could some time in the future be sold for, rather than its present market value.

In view of the testimony before the commissioners, and what seems to me to be the absence of any real evidence as to what the actual value of the property is, I do not think it was error for the court to provide that the question as to the value of the property taken should be determined by new commissioners when the evidence as to what the property would actually sell for to-day, rather than its prospective value in the future could be more satisfactorily established. What I think the commissioners had to determine is its present value, what it would

Page 384

now sell for, and not what real estate experts think it would sell for at some future time. I think, therefore, that the order should be modified by sending the proceeding back to new commissioners to be appointed by the order, and as modified affirmed, with ten dollars costs and disbursements.

LAUGHLIN, CLARKE and MILLER, JJ., concurred; SCOTT, J., dissented.

SCOTT, J. (dissenting):

This is an appeal from an order denying a motion to confirm the report of commissioners in condemnation proceedings and referring the matter back to the same commissioners for further consideration. The ground upon which confirmation was refused was that in the estimation of the court the award for damages was too large. This conclusion was arrived at, not because the commissioners had adopted any erroneous principle in assessing the award, but merely because the court arrived at a different conclusion from that which the commissioners had arrived at upon the evidence taken by them. When confirmation of a report is refused upon this ground we are of opinion that new commissioners should always be appointed.

Assuming, as we do in this case, that the commissioners acted conscientiously and in accordance with their best judgment, and have given the subject the careful attention that its importance demands, it is not probable that upon the same or similar testimony to that which was presented before, they will to any appreciable extent modify their former views as to the damage caused by the improvement. The result will be either that they will report substantially the same damages, or, if they report less, that they will do so because they feel constrained by the reason given by the court for resubmitting the question. In the one case nothing will be gained by the resubmission. In the other the property owners will not have received, what they are entitled to receive, the free and uncoerced judgment of the commissioners. Of course when the objection to a report is ...


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