In the Matter of the Application of the GRADE CROSSING COMMISSIONERS OF THE CITY OF BUFFALO, Appellants, for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of and Parties Interested in Lands Claimed to Be Injured by the Change of the Grade of Broadway, and Claimed to Be Owned by CLINTON K. DE GROAT and Others, Respondents, and THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, and Others. (Proceeding No. 89.)
APPEAL by the Grade Crossing Commissioners of the City of Buffalo and by The New York Central and Hudson River
Railroad Company from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 16th day of November, 1910, refusing confirmation of the report of the commissioners of appraisal duly appointed herein, and directing the appointment of a new commission.
The proceeding was commenced in July, 1909, by the service of a duly verified petition and notice of motion upon all parties interested, asking that commissioners of appraisal be appointed to ascertain and report the damage done to the property of the respondents and to the property of other owners affected by carrying out the plan adopted by the grade crossing commissioners for the abolition of the crossing at grade of Broadway in the city of Buffalo and the tracks of the New York Central and Hudson River Railroad Company, which plan involved the construction of a subway in which Broadway was to be carried under the tracks of such railroad. During the year 1907-1908 the work was completed in accordance with the plan adopted, and the grade of Broadway, upon which respondents' premises abutted, as did the premises of other owners who were made parties to this proceeding, was lowered and changed and, concededly, such premises were thereby damaged.
Thereafter and in July, 1909, this proceeding was instituted. The plan for the elimination of the crossing in question was adopted and the application for the appointment of commissioners of appraisal was made in accordance with the provisions of the Grade Crossing Act, so called, being chapter 345 of the Laws of 1888, as amended, and no question is raised upon this appeal as to the regularity of such proceedings.
Each of the commissioners of appraisal viewed the premises in the manner hereinafter mentioned, took an oath of office, to which attention will be called, heard all the evidence offered by the respective parties, and made their report by which they awarded damages in various amounts to the respondents and to the other property owners.
Upon the coming in of such report the grade crossing commissioners duly made a motion at a Special Term of the Supreme Court for its confirmation, in which motion the other appellant, the New York Central and Hudson River Railroad Company,
acquiesced. Objection was made by certain of the landowners abutting upon Broadway, but all of them have acquiesced in the report by accepting their respective awards or otherwise, except the respondents upon this appeal.
The respondent Clinton K. De Groat, who is the owner of parcel No. 1 described in the petition, objects to the confirmation of the report of the commissioners upon the ground, first, that the award is inadequate; second, because the taxes assessed against the property and directed to be deducted from the award were not proven to be a lien against such property; third, because the commissioners of appraisal did not take the oath of office required by the statute, namely, section 9 of chapter 255 of the Laws of 1890; fourth, because John B. Squires, one of the commissioners, was not a freeholder as required by law, and, fifth, because at the time of the appointment of Commissioner Norton he was a party defendant to the proceeding and, therefore, ineligible to be appointed. The objections to the confirmation of the report made by the respondents Wilhelm and Dettman, the owners of parcels 3 and 2 respectively described in the petition, are practically the same as the objections made by the respondent De Groat, except that they do not object because of the form of oath taken by the commissioners, but they do object because, as alleged, the premises were not viewed by the commissioners as a whole, claiming that the view of such premises by any less than the whole number of commissioners was void and made nugatory any report which they may have made in the premises.
The learned court at Special Term overruled all the objections raised by the several respondents to the confirmation of such report, except the objection made by the respondent De Groat that the commissioners of appraisal had not taken the oath prescribed by the Grade Crossing Act, so called, and, therefore, that their award and determination in the premises was void.
Ralph K. Robertson and Spencer Clinton, for the appellants, Grade Crossing Commissioners.
Alfred L. Becker, for the appellant, The New York Central and Hudson ...