Opinion
May 4, 1910.
Jerome H. Buck and Edward A. Alexander, for the appellant.
John J. Linson and Francis K. Pendleton, for the respondent.
It is well settled in this State that an appellate court will not interfere with the reports of commissioners of appraisal in condemnation proceedings for inadequacy or because excessive, unless the amount awarded is so great or so small as to be palpably unjust. Nor will it be set aside for mere errors in the receipt or exclusion of evidence. To justify the reversal of an award for error of law it must be made to appear that the commissioners adopted an erroneous principle in estimating compensation. ( Matter of Daly v. Smith, 18 App. Div. 196; Harlem River Portchester R.R. Co. v. Reynolds, 50 id. 575.)
After a careful examination of the evidence in this proceeding, we are not convinced that the commissioners adopted an erroneous principle of valuation or that injustice has been done the claimant. We think, however, that the report of the commissioners of appraisal is erroneous in that it does not contain a statement of the sum estimated and determined upon as a just and equitable compensation to be made by the city to the owner, as required by section 13 of the act (Laws of 1905, chap. 724, as amd. by Laws of 1906, chap. 314) under which the land was taken. The evidence before the commissioners shows and their report states that the ownership of the land, at the time it was taken, was in the appellant, subject to a grant to the Citizens' Standard Telephone Company of a right of way for a telephone line over said premises, and that "The amount ascertained and determined by us as aforesaid to be paid to the owners thereof and the persons interested in the said land for the acquisition of the fee of the premises designated on said map as parcel No. 54, 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 two thousand eight hundred dollars ($2,800), are as follows: Jacob Mayer, owner twenty-six hundred dollars ($2,600), subject to easement of the Citizens' Standard Telephone Company of undetermined value. Winn Van Steenburgh, the owners of certain growing timber standing on said premises, two hundred dollars ($200)."
Sic.
It is apparent that the effect of this award is to compel the appellant to await the determination of the compensation to be made to the telephone company. It does not estimate and award the damages to which the appellant is entitled, and, therefore, it does not comply with the law.
It necessarily follows that the order appealed from, in so far as the same relates to the amount awarded for parcel No. 54, should be reversed, and the report or award of the commissioners set aside, and the matter remitted to the commissioners for a determination of the amount to which the appellant is entitled, with ten dollars costs and disbursements to the appellant.
All concurred.
Order, in so far as the same relates to the distribution of the amounts awarded for parcel No. 54, reversed, and the report or award of the commissioners set aside, and the matter remitted to the commissioners for the determination of the relative amounts to be awarded to the parties interested, with ten dollars costs and disbursements to the appellant.