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In re Application & Petition of Simmons

Supreme Court of New York, Appellate Division

July 27, 1911

In the Matter of the Application and Petition of J. EDWARD SIMMONS and Others, Constituting the Board of Water Supply of the City of New York, etc., Appellants, to Acquire Certain Real Estate for and on Behalf of the City of New York, for the Purpose of Constructing Hillview Reservoir at Yonkers, N.Y. , to Increase and Maintain the Supply of Pure and Wholesome Water for the City of New York. (Hillview Reservoir, Section No. 1.) GEORGE N. RIGBY and Others, Commissioners of Appraisal, Respondents.

APPEAL by the petitioners, J. Edward Simmons and others, constituting the board of water supply of the city of New York, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of May, 1911, taxing and allowing the bills of the commissioners of appraisal herein.


William McM. Speer [Archibald R. Watson with him on the brief], for the appellants.

Henry R. Barrett, for the respondents.


Commissioners of appraisal held sessions on eighty-one days for which they claim compensation extending from June 11, 1909, to January 3, 1911, devoted largely to one parcel of land, a farm of fifty-four acres, adapted to sale in lots. At seventy-five sessions evidence was taken aggregating some three thousand and seventy pages, some printed and some typewritten, or

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about forty-one pages per session. In addition, one day from eleven A. M. to two P. M., and another from ten-thirty to two P. M., were devoted to viewing the property, one day ten to two and three other days eleven A. M. to three P. M. to executive sessions. On three or four days when evidence was taken there was also an executive session, and another day was in part devoted to the pre-paration of the award and report. There were some thirty-four adjournments by consent, six at the instance of the corporation counsel, two to permit consideration or decision of questions by the commissioners, two to await action of engineer, two by reason of absence of a commissioner, three by reason of commissioners' illness, twelve upon request of claimant's counsel, three or more for absence of counsel, three on account of cold room, three by reason of witness' illness or inability to testify, three or more because there was no work. The corporation counsel offered some objection to or disapproval of four adjournments; on two occasions the commissioners asked for afternoon sessions. The affidavit of the commissioner in every instance shows at what hour the commission met, but so often omits the hour of adjournment that the length of many of the sessions does not appear. But the average length indicated by the hours given in the history of thirty-six sessions is roundly two hours and forty-five minutes, or less than one-half of a usual court day. I am not inclined to place the fault entirely upon the commissioners. They observed the system that has obtained in such proceedings; they were largely dependent upon the material furnished by the corporation counsel and the claimants, and those representing the interests of the city permitted the proceeding to drag through the days and years. What testimony they saw fit to provide for a session the commission took and then adjourned. On some days there was none, on some days a little, and on some a fair amount. While the average was about forty pages, on March twenty-second, in some four and a half hours, they took one hundred and fourteen pages of evidence; on April eleventh, in four hours, they received ninety-seven pages, while on April thirteenth, in four hours and twenty minutes, the record shows one hundred and forty-five pages. If there

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was anything to do they did it. If not, they adjourned. It is just to notice that, regardful of public criticism of commissions in general, they did, as early as December 3, 1909, express readiness to proceed daily and their 'desire to sit every day until the whole thing is completed, and if that can be done, I will be very much obliged to the Corporation Counsel, the representative of the City and also the office of Mr. Flannery,' and again on December seventh the commissioners asked the counsel to 'be ready four days a week and proceed as rapidly as possible.' But the loitering continued, and on January fourth the commissioners expressed their disapproval of the short sessions. And still the proceeding went forward with much of its former somnolence. The representative of the city, when not consenting to or asking or abetting adjournments, joined in the general indolent conduct of the proceedings, seldom objecting to abbreviated or unemployed sessions, or opposing so mildly that the motion of the city to remove the commissioners as late as April, 1910, suggests a suitor disappointed by the rulings quite as much as the tardiness of the commission. This attempt to eliminate officers, properly nonconformable to the city's apprehension of the law and participants in its desultory and dilatory disposition of the matters in hand, delayed the sessions to October 27, 1910. The necessity and result of the disciplinary action of the city may be noted. In thirteen sessions four hundred and thirty-seven pages of evidence was taken, or an average of thirty-four pages per session, and the commissioners sat eighteen hours and ten minutes, or an average time of one hour and twenty-four minutes for each session. This excludes some parts of these days given to executive meetings. After the sessions were renewed on October twenty-seventh, the corporation counsel consented to or requested at least ten adjournments and objected to none. The opposition of the city to the payment of the sum granted may be dutiful, but an exhibition of readiness and rigorous prosecution of the proceeding might have made its present attitude unnecessary. But the commissioners had the power to organize its business and insist upon punctual attendance by the parties, prompt submission of the evidence under the penalty that follows default, and when they ask for

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compensation their complaisance or submission cannot be substituted for the action that the law demands. For the seventy-five days, while they were engaged for an average time of less than three hours they should be paid for a half day's work at the rate of $50 per day, or $1,875; for the six days devoted to views and executive session they should be paid $300; and for days when they took evidence and also held executive sessions, and for those necessary adjournments on account of sickness or other cause excusably preventing a full day's service, $300 more may be added, making the allowance for each commissioner for services $2,475, and the order as so modified should be affirmed, without costs.

JENKS, P. J., CARR, WOODWARD and RICH, JJ., concurred.

Order modified in accordance with opinion and as so modified ...

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