Opinion
June 30, 1943.
Defendant village appeals from an order and judgment entered on the confirmation at Special Term of the report of commissioners awarding to the plaintiffs the sum of $8,816.84 for damages allegedly sustained by reason of the change of grade of two streets within the defendant village upon which plaintiffs' property abutted. The commissioners found that the true, fair and reasonable market value of the premises in September, 1929, before any damages were sustained, was $9,500; that the true, fair and reasonable market value of the premises in October, 1930, after the change of grade and completion of street improvements, was $3,000. The commissioners also found that as plaintiffs have been assessed in the sum of $2,316.84 as the cost of the improvements, which amount was included in the value of $3,000, and have derived no benefit from said improvements and change of grade, the amount of such assessment, to wit, $2,316.84, which is a lien on the premises, should be deducted from the sum of $3,000, making the value of the property as of October, 1930, the sum of $683.16, thereby resulting in damages to plaintiffs in the sum of $8,816.84. Defendant village urges that the award is grossly excessive and erroneous as a matter of law. The commissioners viewed the premises and heard a great amount of testimony as to value and the award should not be set aside as excessive "unless it is obviously and clearly wrong, or unless it is such as to shock the sense of justice of the court." ( Matter of City of Rochester [ Smith St. Bridge], 234 App. Div. 583; Adirondack Power Light Corp. v. Evans, 226 App. Div. 490. ) The inclusion of the sum of $2,316.84, the amount assessed against the property for improvements, is inequitable. Plaintiffs are entitled to an award of $6,500, that being the difference between the market value of the premises before the change of grade, found by the commissioners to be $9,500, and the market value of the premises after the change of grade, found to be $3,000.
We find no provision for a modification of the award by the court without a rehearing before the same commissioners or new commissioners. Accordingly, the order and judgment will be reversed and the award set aside and a rehearing directed before the same commissioners unless the plaintiffs within ten days after the service of a copy of the order to be entered herein stipulate to modify the award by deducting therefrom the sum of $2,316.84, thereby decreasing said award to the sum of $6,500, file such stipulation in the office of the Clerk of Albany County and serve a copy thereof on defendant's attorney, in which case the judgment and order as so modified will be affirmed, without costs. Ordered accordingly. Crapser, Bliss, Heffernan and Schenck, JJ., concur; Hill, P.J., concurs for a reversal and for decreasing the award to $5,000.