In re New York Elevated Railroad , 42 N.Y. Sup. Ct. 414 ( 1885 )

Daniels, J.:

The commissioners were appointed to ascertain and appraise the compensation to be made by the petitioner to Rufus Story for so much of the privilege, easement or other interest in Front street belonging to him, or appurtenant to lots 1 and 9 on the street, as was taken by it for its use as an elevated railway. The right of the owner to compensation was determined in his favor in Story v. New York Elevated Railroad Compamy (90 N. Y., 122), and also that this proceeding was authorized by the statute to ascertain the amount of such compensation. The ■ railroad was constructed over the carriage-way of the street, and stood upon columns placed on the curb-line of the sidewalk in front of these premises. It was about fifteen feet above the surface of the street, and is alleged to have interfered with the light and air previously enjoyed by the owner in the occupancy and use of his premises, and in the means of access to and from such premises, and it was to compensate him for this interference that the proceedings were ihstituted. They resulted after a hearing before the commissioners, in an award in his favor, amounting to the sum of $15,000. The report of the commissioners was made in very general terms, and on the application of the petitioner an order was afterwards made requiring them to make a further report setting forth the easements for which they had allowed such damages, and what damages they had allowed and awarded for such easements respectively. In compliance with this order they have made a further report, staging as far as they appear to have regarded that as practicable, the subjects for which the owner was entitled to be compensated by their first report. This report has also been objected to, as not sufficiently definite or explicit to enable the parties, or the court, to understand precisely for what the amount allowed is intended to be a compensation. But the supplementary report does state the subjects included in the determination of the commissioners, and for wbicb they have allowed the sum in bulk mentioned in tbeir original report. Under . the evidence, they regard these subjects as incapable of any more definite or accurate description than that wbicb they bave given of them, and it would accordingly be useless to send the reports to them again for any more detailed description of the items intended to be included in tbeir award.

1 From the reports which they bave made it can be ascertained what subjects they considered as the basis of tbeir award, which will enable the company, as it is dissatisfied with the amount, to secure as intelligent a review of the proceedings and determination of the commissioners as may ordinarily be afforded in proceedings of this description.

No irregularity appears to have intervened in any form in what has taken place before the commissioners, and no ground therefore has .been presented for setting aside the report under the authority of the case of the New York Central, etc., Company (64 N. Y., 60). Where that cannot be done by section 17 of chapter 140, Laws of 1850, the report of the commissioners is required to be confirmed, and that was considered to be the obvious effect of the act in the Rochester, etc., Railway Company v. Beckwith (10 How., 168, 175), and also in the Application of New York Central Railroad Company to Acquire Lands of Pierce and Others (recently affirmed in the Fifth Dept.^*) The order of confirmation follows as a matter of course, where the proceedings bave been regular, upon the presentation of the report of the commissioners. The railroad company has not, by its notice, specially asked for such an order, but under the concluding clause of the notice, by which other or further relief has been ajoplied for, as to the court may seem just, and the owner being entitled, upon the'facts appearing, to bave that relief directed, an order to this effect may be made, for under that clause in the notice it has been held that relief may be awarded to such an extent as is warranted by the facts plainly appearing in the papers on both sides (Thompson v. Erie R. R. Co., 45 N. Y., 468, 476); and that order is plainly warranted by the facts now appearing before the court. Its entry does not deprive the railroad company of its right to draw in question the legal accuracy of the proceedings before the commissioners, including their final determination. For by section 18 of the same act the right of appeal has been secured to either party dissatisfied with the report, by the service of notice within twenty days after its confirmation, and that appeal may be heard at the General or Special Term of the Supreme Court; and on its hearing the court may direct a new appraisal before the same or other commissioners, in its discretion. That is the legal and appropriate mode of reviewing and considering the effect of the evidence, and the proceedings of the commissioners depending upon it, and involving the merits of the controversy. (Matter of N. Y. Central R. R. Co., supra.) The confirmation of the award of the commissioners has been in no manner allowed to stand in the way of this appeal, or of the complete review of the decision and determination made by the commissioners, and the rights of the railroad company, whatever they may be alleged to be, will be in no way prejudiced by this confirmation; and it seems to be a precedent circumstance to the right of review provided for by the statute.

An order should be made confirming the report of the commissioners, and deferring the consideration of the objections presented by the counsel for the company, until an appeal from the award may be taken and brought to a hearing before the court.

Brady, J., concurred.

Davis, P. J.:

The confirmation of the report is under the statute necessary to put the case in position for a review of the merits of the several questions sought to be raised. An appeal can then be taken as shown by Daniels, J., on which all the questions both of law and fact that can in any form be reviewed by this court will be presented. It is to be regretted that the commissioners found themselves unable to designate more specifically the particular easements they had considered in making their award, and the respective values of such easements to which they thought the owner of the lot entitled, because that course would remove difficulties that may prove very embarrassing on an appeal. But the certificates of their inability to do that must be taken as sufficiently showing that they have done all that seemed to them to be in their power to comply with the suggestions of the court. This is not such an irregularity as permits or requires the setting aside the report and vacating the appointment of the commissioners.

I concur therefore in the making of the order of confirmation as suggested in the opinion of Daniels, J., without prejudice to any appeal that may be taken by either party pursuant to section 18, of the general railroad act.

Order directed confirming report of commissioners.

* Reported ante, page 806.