In re Metropolitan Elevated Railway Co. , 36 N.Y. St. Rep. 224 ( 1891 )

Brady, J.

Yo exceptions were taken by the appellants, and the proceedings present only the questions, if any, which spring from them, namely, whether the respondent, Oberfelder, was entitled to an award, and, if yea, whether the compensation given was so excessive as to be palpably wrong. The recorded testimony was in conflict to some extent on the subject involved, but, as the record does not necessarily give all the influencing circumstances, the wl ole case is not, it may be said, before us. It is familiar law that in proceedings like these the commissioners are not like other tribunals to be governed exclusively by evidence, or confined to the strictness observed in common-law actions in the receipt of evidence, and can view the locus in quo. Aside from this, it does not appear upon the record that the commissioners erred in the principles upon which they made their appraisal; a circumstance striking and impressive relating to that conclusion being the absence of exceptions. Both parties had an equal range of proofs, and the respondent was the successful party, and it cannot be said either that he was not entitled to damages, or that the amount given was excessive.- The facts showing a depreciation in the enjoyment of the premises, and a diminution of tlieir value, were stated and reported by the commissioners to exist, arising from the construction and use of the appellant’s road and appliances. The proof showed that, while the property in the immediate vicinity had, since the respondent’s purchase of his premises, increased 25 percent., the respondent’s had only increased 10 per cent., in consequence of the appellant’s structure and the running of its locomotives. The commissioners gave less than these figures warranted, however, and this decreases the cause of complaint by the appellants. It is not at all difficult in these eases to build up theories upon which an appeal seems to be plausible, or to advance others which maybe the subject of examination in other cases, or to assume that the commissioners have considered improper items of damage, but only questions which rest upon some tangible "basis can be properly considered. In this brief review, all is said that is deemed appropriate, except that there has been nothing discovered which calls for a reversal. The order appealed from should therefore be affirmed, with costs. All concur.