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In re Application & Petition of Bensel

Supreme Court of New York, Appellate Division

December 28, 1911

In the Matter of the Application and Petition of JOHN A. BENSEL and Others, Constituting the Board of Water Supply of the City of New York, Appellants, to Acquire Real Estate for and on Behalf of the City of New York, etc., in the Town of Hurley, Ulster County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York, Appellant. (Ashokan Reservoir, Section No. 18, Parcel 916.) LEVI E. DUMOND and NELLIE DUMOND, Respondents.

APPEAL by John A. Bensel and others, constituting the board of water supply of the city of New York, and another, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Ulster on the 30th day of June, 1911, confirming the report of the commissioners of appraisal of Ashokan Reservoir, section 18, in respect to the awards of parcel 916, and directing the payment of witness and counsel fees, and reserving

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to the claimants the right to proceed in another proceeding for the injury to business.

COUNSEL

Archibald R. Watson [William McM. Speer of counsel], for the appellants.

Arthur A. Brown [Harrison T. Slosson of counsel], for the respondents.

SMITH, P. J.:

Upon May 22, 1909, the commission was appointed which had jurisdiction of the claim in question. That commission was appointed upon a petition of the board of water supply of the city of New York, for the appointment thereof 'to ascertain and appraise the compensation to be made to the owners of and all persons interested in the real estate laid down on said maps as proposed to be taken or affected for the purposes indicated in said act, and to exercise and discharge all the powers and duties conferred upon commissioners of appraisal by said act or the acts amendatory thereof or relating thereto.' Thereafter and upon August 25, 1910, the claimants, Levi E. Dumond and Nellie Dumond, filed their claim. In their notice of claim it was stated that the claim did not include damages to claimants provided for under section 42 of chapter 724 of the Laws of 1905, as amended; [a1] section 8 of chapter 725 of the Laws of 1905, or indirect damages provided by section 3 of chapter 723 of the Laws of 1905. [d1] The claimants demanded $30,000 damages, together with expenses and disbursements, including compensation for witnesses, allowance for counsel fees of five per cent of the amount of the award made for said real estate and costs. This claim was tried before the commission, and during its trial the following colloquy occurred: 'By Mr. Slosson: Q. I want you to tell the Commission, as near as you can, what have been the cash receipts from your business, year by year, for the last five years. I ask this question, not for

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the purpose of proving damages to the business, but merely for the purpose of showing the amount of business that has been carried on at this place. Mr. Grogan: I object to that as incompetent on the further ground that the Commission has no jurisdiction to go into that. Mr. Slosson: I don't ask it for the purpose of proving the value of the business. The Chairman: Why do you ask it? Mr. Slosson: Simply to show the amount of business which was done here. Mr. Grogan: I object to it on the further ground that the value of real estate does not depend on the amount of business done at that particular place. The Chairman: Objection sustained. Mr. Slosson: Exception. Mr. Grogan: If the Court please, I desire to renew my motion to strike out the testimony of Mr. Carl, Frank Matthews, Delancey Matthews and Mr. Hasbrouck, on the ground that any of the witnesses were not shown to be qualified to testify to the value of real estate at West Hurley, and on the further ground that all of the witnesses have admitted that in making up the value of the real estate they were guided entirely by estimating what the profits would be by a successful business man, and all of them have admitted on cross-examination that they would not be guided by what the actual cost of the buildings were or what the market value of the real estate in that community has been or was at the time the city acquired title. The Chairman: I have noted the peculiar features of their testimony, but I think their evidence has some value upon the question of the value of this property, and the motion is denied. Mr. Grogan: Exception.'

After the trial before the commission the report of the commissioners was duly made, and contained this recital: 'The amount ascertained and determined by us as aforesaid to be paid to the owners of and all persons interested in the said land for the acquisition of the fee of the premises designated on said map as Parcel No. 916, and for all damages sustained or which may be sustained by them by reason of the acquisition, use and occupation of the said fee for the purposes indicated in said act, is the sum of fourteen thousand dollars.' Upon motion of the claimants this award and appraisal were confirmed by the Special Term by the order from which this appeal is taken. In that order is included what has been called the 'business proviso.'

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That is a clause providing that the order should not be construed as precluding the above-mentioned owner from presenting or prosecuting any claim that he might have for damages for the decrease in value of any established business owned or carried on by him, and that it should not constitute a bar to the enforcement of such claim, if any such claim he had, and that the order should not be construed as an adjudication or opinion as to the evidence of any such claim. It was further provided in the order that expenses and disbursements to the amount of $241.64, including reasonable compensation for witnesses, should be allowed, and $700 for counsel fee.

There has been no appeal from the report or appraisal of the commisssioners, and this appeal raises no question as to the amount or validity of that award. Two questions only are raised by the appellant. First, that the order should not have contained this so-called 'business proviso.' Secondly, that the order should not have adjudicated the costs and disbursements without a recommendation by the commissioners pursuant to sections 13 and 32 of the Water Supply Act. (See Laws 1905, chap. 724, § 13, as amd. by Laws of 1906, chap. 314; Id. § 32.)

Upon the first question the rights of the parties have been much clarified by the opinion of the Court of Appeals in People ex rel. Burhans v. City of New York (198 N.Y. 439). In that case the city had proceeded to condemn the real estate of one Lasher, and compensation had been adjudicated therefor. Upon the trial before the commissioners the city had made the contention that the commissioners had no jurisdiction to determine the damage to any established business and that contention had been sustained by the commissioners. Thereafter Lasher sought to mandamus the city to commence proceedings to determine the loss to her business under the act. That mandamus was granted at Special Term and the order granting the same was affirmed by the Appellate Division (People ex rel. Lasher v. City of New York, 134 A.D. 75) and by the Court of Appeals. Judge WERNER, among other things, in writing for the court, says: 'We think the statutes under consideration contemplate the determination of all such claims in the original proceedings instituted to acquire

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lands upon which such business was carried on, and that is the practice which the claimant herein sought to invoke. The commissioners should have taken her evidence as to damages and determined her claim in the proceedings to acquire the land upon which her business had been carried on. As that right was denied to her, she will be without remedy unless she can compel the city authorities to institute a separate proceeding for the determination of her claim. The attitude of the appellants has made that the law ...


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