
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title to Baychester Avenue from West Fourth Street to the Northerly Boundary of Pelham Bay Park at Baychester Station, in the Twenty-fourth Ward, Borough of the Bronx, etc. Maria A. O'Brien, Respondent.
    First Department,
    June 28, 1907.
    Eminent domain—house built by; claimant after knowledge that lands would be taken — adjournment — erroneous exclusion of evidence.'
    • When on a street opening proceeding it is discovered that claimant after the appointment of commissioners and hearings before them had begun, has erected a house on portions of her lands which slie- knew would be taken, the commissioners ghould grant an adjournment to enable the municipality to ascertain the location of the house, and whether it could be moved hack upon the portions not taken. ,
    On the hearing it is error to exclude testimony tending to show whether or not such house could be moved. : .-
    Although one who erects a' house upon lands to be’taken for a street after the commissioners of' estimate and assessment have been appointed may recover damage for its destruction whether the building was erected in good or bad faith, .yet the commissioners may take into consideration the fact-that the claimant can move the building back upon lands not taken, thus avoiding its destruction", and consider the cost of moving as an clement in arriving at the" just compensation to be awarded.
    Appeal by the petitioner, The City of New York, from an order of. the Supreme Court, made at the Kings County Special Term and entered in the office of. the clerk of the county of Kings on the 18th day of July, 1906, and in the office of the clerk of the county of New York on the 19th day of February, 1907, and in the office of the clerk of the county of "Westchester on the 20th day of February, 1907, confirming the report of commissioners "of estimate and assessment in favor of the respondent. .
    
      John P. Dunn, for the appellant.
    
      John T. Delaney, for the respondent.
   Houghton, J.:

The respondent was the owner of' a plot of" land-" designated as parcel 194 on the-damage map filed in'this proceeding, which was initiated by resolution of the board of public improvements, adopted -April 25, 1900. . The commissioners were appointed" October 21, 1901, and hearings were begun in .January, 1902. The improvement was the widening of Baychester avenue.

The respondent was the owner of block 16-2-, as designated on the map which consisted of five lots numbered 14 to 18. The widening of the avenue took a greater portion of lot 14. After commissioners were appointed and hearings before them had begun the respondent moved "and installed upon lot 14 a dwelling house. As the avenue was to be widened, its westerly line would cut ofE the front of this house, and largely because of that fact the respondent was awarded something over $6,000.

" . From the record it1 is apparent that the respondent moved the house upon the lot, which she knew was to be taken for the purpose of widening the avenue, for the very purpose of having it-destroyed and recovering damages therefor.

On the hearing before the commissioners the position of the city was, that this being the situation the respondent could not recover damages for the destruction of the house. This court has recently held that the fact that one .erects a house on his lot after commissioners of estimate and assessment have been appointed in proceedings to take part of the lot for opening a street, does not prevent him from recovering damages for its destruction whether or not1 the building was erected in good or bad faith. (Matter of City of New York, Briggs Ave., 118 App. Div. 224; 102 N. Y. Supp. 1102.) The above case lays down the proposition, however, that the. commissioners may take into consideration whether or not the claimant can move the building back upon his lot, and thus avoid ■its destruction; and if that can be done, then the cost of moving and installing it without injury would be an element,to be considered in arriving at the just compensation to be awarded. In the. present case the lot is cut lengthwise, but the claimant owns lots in the rear which would give sufficient depth for a building if moved back upon them. It 'may be that these lots are not too valuable to be used for this purpose and that by so using them the building need not be destroyed.

Counsel for the city were evidently surprised to learn on the hearing that a building had- been erected on the lot subsequent to the filing of the damage map, and they applied to the commissioners for an adjournment of the matter to enable them to-ascertain its exact location with respect to the widened street. Several questions were propounded to a witness called in behalf of the city respecting the building, one of thém being whether or not it could be moved off the lot, which question the witness was not permitted to answer. .

We think the commissioners should have granted the application of the city for the adjournment of the hearing to.enable it to learn the facts, and that it was error to exclude evidence with respect to ; the. remo val of the building. It is not entirely clear that counsel for the city, when he propounded this question, had in mind the fact that the 'claimant owned the lots in the rear -of the building-, and that lie meant by his question a,s to its removal whether or not it could be moved back from the street onto these lots, but he might have had that in mind, and if he had been permitted to pursue his inquiry he might have developed that fact.

The order, so far as appealed from, should be reversed, withou ú costs, and the- report returned to the commissioners for revision.

Ingraham, McLaughlin, Clarke and Lambert, J J., concurred.

Order reversed, without costs, and. report returned to commissioners for revisión.  