
    In the Matter of the Application of the Manhattan Railway Company, Appellant, v. William T. Comstock, as Substituted Trustee under the Last Will and Testament of Nehemiah U. Tompkins, Deceased, and Others, Respondents.
    
      Condemnation proceedings—when the award of the commissioners will he disturbed on appeal—they may view thepiemises.
    
    An award of damages made by commissioners appointed in condemnation proceedings, instituted by an elevated railway company in the city of New York to acquire easements appurtenant to property abutting upon the railroad, will not be disturbed unless the court can clearly see that they have proceeded upon an erroneous principle, or have been influenced by passion or prejudice, or have overlooked or disregarded the evidence.
    In determining the amount of the damages, the commissioners are not confined to the testimony given by the witnesses for the respective parties, but may view the premises.
    Appeal by the plaintiff, the Manhattan Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of May, 1902, confirming the report of commissioners of appraisal.
    
      Arthur O. Townsend, for the appellant.
    
      C. N. Bovee, Jr., for the respondents.
    
      James C. Bushby, guardian ad litem for certain infants..
   McLaughlin, J.:

The defendant instituted, for the purposes of its railroad, proceedings under the statute (Code Civ. Proc. §§ 3351-3384) for the condemnation of easemenfs appurtenant to certain real property located at 161 and 348 Bowery in the city of New York. Commissioners of appraisal were appointed, and after taking evidence and personally viewing the property to be taken, a report was made in which a majority of the commissioners concurred, fixing the damages at $8,000 for 161 Bowery and $6,712.50 for 348 Bowery. The report was subsequently confirmed, and from the order of confirmation the railroad company appeals. It asks that the order be reversed and the report set aside, and new commissioners appointed, principally upon the ground that the damages awarded are excessive.

We have carefully examined the evidence bearing upon the damages awarded, and while it might be more satisfactory if a less" sum had been awarded, nevertheless, it cannot be said that there is no basis for the award or that the evidence does not sustain it, nor can it be said that the commissioners in making it did not proceed strictly in accordance with the rules governing proceedings of this character. The rule which governs upon the review of an award of commissioners in condemnation proceedings is well settled, and that is, that every intendment is in favor of the action of the commissioners, and' their report will not be disturbed unless the court can clearly see that they have proceeded upon an erroneous principle or have been influenced by passion or prejudice, or have overlooked or disregarded the evidence, and for that reason injustice has been done. (Manhattan Ry. Co. v. O’Sullivan, 6 App. Div. 571; S. C. affd., 150 N. Y. 569; Matter of New York Elevated R. R. Co., 35 N. Y. St. Repr. 944.) When this award is tested by this rule, it at once becomes apparent that no facts are set forth in this record which would justify the court in interfering with the report • of the commissioners. Witnesses were produced by the respective parties, and while their estimates of value differed very materially, "it-was peculiarly for the commissioners to determine, which they would, if either, believe, and in addition to this they were not confined to the testimony of the witnesses or the evidence adduced before them, but they had the right, as they did, for the purpose of ascertaining and fixing the damages, to view the premises. It cannot, therefore, be said that the damages awarded are excessive, or that injustice has been done to the appellant.

The appellant also complains of the award made to the guardian ad litem, not that the court did not have the power to make an award, but that the amount awarded is excessive. There have been practically three hearings before the commissionérs, and this, taken in connection with the former appeal to this court and the Court of Appeals, was sufficient, we think, to justify the court in making the award which it did.

The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.

Van Brunt, E. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  