
    In the Matter of the Application and Petition of J. Edward Simmons and Others, Constituting the Board of Water Supply of the City of New York, Appellants, to Acquire Real Estate, etc., in the Towns of Yorktown and Cortlandt, Westchester County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. Peekskill Ice Company, Respondent. Catskill Aqueduct, Section No. 1, Parcel No. 40.
    Second Department,
    June 24, 1910.
    Eminent domain—Tíew York city—water supply— cutting off access to land—ice pond—diminution of water supply —award.
    Where, in a proceeding by the city of New York to condemn a part of property used for the harvesting and storing of ice which consists in part of a pond and a marsh through which the inlet to the pond runs, one of the items of damage claimed is that the former access was cut off and that the rights of way granted by the city are so steep as to be practically unusable, the commissioners should take evidence as to the cost of the fill necessary to give the owner an easier grade over the rights of way.
    Where it appears that since the report of the commissioners the city has begun work in part of the swamp land taken and there is a dispute as to whether or not this cuts off to some extent the water supply of the pond, the matter should be referred back to the same commissioners for a new hearing to ascertain whether increased damages should be'awarded.
    Appeal by J. Edward Simmons and'others, constituting the board • of water supply of the. city of' Hew York, from an order of the Supreme Court, made at the Westchester Special Term and entered in-the-office of the clerk of the county of Westchester on the 14tli day of June, 1909,.appointing new commissioners in the proceeding.
    
      H. T. Dykman [Archibald R. Watson with him on the brief], for the appellants.
    
      Leverett F. Crumb, for the respondent.
   Carr, J.:

This is a proceeding begun by the city of Hew York to acquire land for the extension of its water supply system, pursuant to the ■ provisions of chapter. 724 of the Laws of 1905, as amended. The property in question on this, appeal is situate in the town of Cortlandt near the village of Peekskill, in Westchester county. Commissioners of .appraisal were duly appointed and the proofs of the petitioners and the owners were taken as to damages. On these proofs a report was made awarding damages to the owners in the sum of $4,088. A motion was made at a Special Term of this court in Westchester county to confirm the report. Pending, the decision of this motion, the owners of the land moved to. set aside the report on the ground of newly-discovered evidence. The learned court at Special Term decided both motions by granting an order setting aside the report of the commissioners and appointing new commissioners of appraisal to take proofs and report as to the damages to 'be awarded to the owner of the land. From that order , this appeal was taken. The court at Spécial Term filed an opinion from which it appears that it had concluded that the present commissioners had arrived at their report upon an erroneous principle, in that they had failed to consider the proofs of -the owners as to the damages caused to that part of their property which was not taken and which, together with the part taken, was used by them in the harvesting and storing of ice for the purposes of sale in the village of Peekskill. The whole tract owned by the claimants consisted of about seven and a half acres, and comprised a small pond, with lands forming its shore or border, and some swamp land adjoining, which was connected with the pond by a small stream or ditch. This land, on one of its sides, fronted on a public highway known as Locust avenue. The portion of the tract taken by the city of New York comprised a part of the swamp land and some of the shore of the pond. In taking this land the city cut off access from the remainder except, over two specified rights of way shown in the maps filed in pursuance of tlie statute. In their original claim of damages the owners asked an award of damages in the sum of $24,500; this amount they increased by an amended claim to $35,600, in support of which they gave proofs. The city gave evidence tending to show that the damages were about $2,000 or $2,100. From this great difference between the amount claimed and the amount awarded, the owners argue that the commissioners arrived at their estimate by failing to take into consideration the value of the land for the purposes of harvesting ice, and in which purpose its sole practical Value consisted. This argument seems to have impressed the learned court at Special Term and contributed very materially to the decision now under review. The whole tract of the owners comprised originally 7.318 acres, of which 4.998 acres were land and 2.32 acres in the pond. Of this entire tract the city took 3.665 acres, leaving the owners 3.653 acres, of which 2.269 acres were in the pond and but-1.384 acres were land. The result of this taking was, according to the owners’ contention, to destroy entirely the suitability of the remainder of their property for ice-liarvesting purposes, and it was upon the basis of this contention that its estimate of its damages was framed. The damage to the land and pond not taken was calculated by the owners as follows: It was estimated that 2,000 tons of ice could be harvested each year, and, after deducting loss by melting, there would be 1,200 tons for the purposes of sale at $8 a ton; after deducting taxes, depreciation, labor and various incidental expenses, it was further estimated that there would be a profit of about $2,270 a season, which profit was capitalized on a seven per cent basis as the value of the entire tract for ice-harvesting purposes.. All the evidence given by the owners as to their damages was based evidently upon a similar calculation, though the items varied slightly.. Whether this method of computing the damage is permissible is very questionable. (Matter of Gilroy, 26 App. Div. 314.) It was claimed that this damage would arise from the city’s taking through three independent but concurrent causes. First, it was claimed that the construction of the city’s aqueduct through the . swamp land would cut off the water supply of the pond. Second, it was claimed that to harvest ice successfully it was necessary to have low land adjoining the pond onto which the snow could be scraped off from the surface of the pond when frozen, and that the city had taken practically all that was formerly available. Third, ■.it was urged that the present access to the property was cut off, and the two rights of way granted by the city were so steep in grade as to be practically unusable by teams drawing heavily laden ice wagons. Omitting for the moment a consideration of the grades of the rights of way, there was conflicting evidence before the commissioners on these contentions, and there is nothing in the bare record ■ to indicate that in their estimate of damages the commissioners excluded the claims of the owners from their estimate on any other theory than that they were not sustained by the weight of evidence.

As to the grade of the rights of way as shown on the city’s map, another question arises. These grades were concededly so steep as to constitute a serious element of damage to the owners, and the .commissioners so thought, as appears by the record. It is claimed by the owners that through a misunderstanding the commissioners . omitted this item from their total estimate of damages. It is urged by the appellant that the commissioners made an allowance for it by awarding some $2,000 more damages than those estimated by the city’s expert witnesses. It appears from the owners’ proof that the rights of way granted by the city could be made of the former grade by the use of about 2,000 cubic yards of earth fill on the owners’-land, and of an easier grade by the use of 2,500 cubic yards. It is urged by the appellant that the commissioners in making the award at a sum in excess of the- estimate of the city’s witnesses, made provision for the cost of .the earth fill. Mo evidence was given as to the cost of the fill, and, assuming that the award of the commissioners was intended to cover this item, there is nothing before the court to show whether the provision, if made, was adequate or inadequate. This objection, however, is not grave enough to require the setting aside of the report and the appointment of new commissioners, as the question can be met sufficiently by remitting the matter to the present commissioners for further proof and consideration. A more serious question arises on the ground of newly-discovered evidence. Since the commissioners made and filed their report, the city has begun its work of construction through the swamp land. The owners presented affidavits tending to show that this'actual work did to some extent cut off the supply of the pond. These affidavits were met by counter affidavits denying the results claimed by the owners. Considering the importance of this point, it would be but fair to permit the taking of further testimony as to the actual conditions attending the work of construction through the swamp, as they affect the supply of the pond. Sufficient time has elapsed to enable testimony to be given on this point with a greater degree of accuracy than was attainable through the opinion evidence given at the original hearing. There is nothing in the record before us to indicate the necessity of the appointment of new commissioners for this purpose, with the consequent loss of time and expenditure 'already had.

The order appealed from should be so modified as to refer the matter back to the same commissioners for a new hearing, and as so modified affirmed, without costs.

Woodward, Jenks, Burr and Thomas, JJ., concurred.

Order modified so as to refer the matter back to the same commissioners for a new hearing, and as so modified affirmed, without costs.  