
    In the Matter of The Metropolitan Elevated R. Co. (In re Jones et al.), Parcel of Oberfelder.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 13, 1891.)
    
    Eminent domain—Elevated railroad.
    Where commissioners were appointed to ascertain the compensation to he made to owners for certain easements taken hy the Elevated Railroad Companies of New York, and no exceptions were taken on the trial, and the report of the commissioners was confirmed, and there was evidence to support their findings, this court will not interfere.
    The special proceeding was commenced on September 20, 1889, by service on Tobias Oberfelder, the respondent, of the petition and notice of application for the appointment of commissioners. The petitioner, The Metropolitan Elevated Railway Company, is a domestic corporation organized and existing under and by virtue of the acts of the legislature of this 'state, being chap. 885, Laws 1872, chap. 837, Laws 1873, chap. 275, Laws 1874, chap. 606, Laws 1875, and the acts amendatory thereof and supplemental thereto. The respondent, Tobias Oberfelder, purchased the premises in question, Ho. 140 First avenue, in this city in 1854, and ever since then has owned and occupied the same; these premises are eighty feet deep, and have a frontage of eighteen feet ten inches on First avenue. Upon this lot is erected a building of brick, four stories in height and eighty feet deep, forty-six feet six inches in height, eighteen feet ten inches in width on First avenue, and is used as a store and dwelling.
    First avenue is one of the public streets of this city, and was •opened under and by virtue of chapter 86, Laws of 1813, and the acts amendatory thereof and supplemental thereto. The elevated railway structure was constructed and the operation of the railway was begun by the petitioner, and since the year 1879 the railway has been maintained and operated by the petitioner and the Manhattan Railway Company, respectively, as lessor and lessee. The ¡structure of the railway and the manner of operating the same is familiar to every resident of the city and'is particularly described in the report of the commissioners.
    In September, 1889, the Metropolitan Elevated Railway Company began these proceedings to acquire so much of the property, ■easements and other interests in First avenue appurtenant to or part of or constituting the street in front of the said premises as has been taken by reason of the construction and maintenance of the elevated railway of the petitioner as the same is now constructed and maintained, etc., and as has been and may be required by reason of the operation of said railway with cars or trains of cars, etc. The respondent consented to the granting of the prayer of the petitioner and to the appointment of commissioners therefor; the order was entered appointing Messrs. Andrew H. Green, Dwight B. Olmstead and Edward C. Donnelly,
    , commissioners “to ascertain and appraise the compensation to be made to the persons hereinafter specified as owners of premises respectively interested in the privileges, easements or interests taken by the petitioners herein for the purpose of its incorporation as described in the petition herein, to wit, the constructing, maintaining and operating its railway, including its roadway, tracks, etc., for its usé as an elevated railway, and so long as the said streets or avenues or any of them shall be used or maintained as public streets, highways or thoroughfares, which said privileges, easements or interests are situate in the city and county of New York.”
    The said property and real estate is further described as follows: So much of the property, easements or other interests in the streets and avenues respectively hereinafter named and intersecting streets appurtenant to or part of or constituting the streets in front of or alongside of the lots and premises hereinafter described respectively, as has been taken by reason of the construction and maintenance of'the elevated railway of the petitioner, as the same is now constructed and maintained, etc.., and as is required by reason of the operation of said railway with cars, etc.
    
      These commissioners met and the proceedings were conducted by them in strict compliance with the provisions of the law governing these special proceedings; their report was duly made and filed on July 1, 1890. The important part of the report of the commissioners is as follows:
    “ Ninth. That the compensation to be made for so much of the privileges, easements and rights appurtenant to the said lot of land known as No. 140 First avenue, in the city of New York, as has been taken by and for the purpose of the petitioner in the manner that the same has been taken by the petitioner by the construction, maintenance and operation of the said railroad through First avenue, in front of the said lot, as hereinbefore described, and in accordance with the plan hereto annexed, is the sum of seventeen hundred dollars ($1,700), etc.” The order of the special term confirming this report was duly made and entered on July 9, 1890. From this order of confirmation the petitioner appealed to the general term of this court on July 21, 1890.
    
      Davies & Bapallo, for app’lts; D. B. & C. P. Cowles, for resp’t.
   Brady, J.

No 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 whole 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 proof 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 respondent’s premises and a diminution of their value were stated and reported by the commissioners to exist arising from the construction and use of the appellants’ road and appliances. The proof showed that while the property in the immediate vicinity had since the respondent’s purchase of his premises increased twenty-five per cent, the respondent’s had only increased ten per cent in consequence of the appellants’ 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 cases to build up theories upon which an appeal seems to be plausible or to advance others which may be 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.

Van Brunt, P. J., and Daniels, J., concur.  