
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Cromwell Avenue (Although Not Yet Named by Proper Authority) from East One Hundred and Fiftieth Street to Jerome Avenue, as the Same Has Been Heretofore Laid Out and Designated as a First-class Street or Road, in the Twenty-third Ward of the City of New York. Henry Lewis Morris, Appellant; The City of New York, Respondent.
    
      Street opening in New York city—right of one objecting to the preliminary abstract of ‘estimate to further cross-examine a witness already examined and cross-examined.
    
    Where, in a proceeding to open a street in the city of New York, the property-owners interested file objections to the preliminary abstract of estimate and assessment filed by the commissioners of estimate and assessment, the commissioners may, in their discretion, upon the hearing of the objections, refuse to-allow the property owners to further cross-examine an expert witness for the city, who had been examined and cross-examined before the preliminary abstract of estimate arid assessment was made.
    Appeal by Henry Lewis Morris 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 19th day of May, 1903, confirming the report of commissioners of estimate and assessment theretofore appointed in the above-entitled proceeding.
    
      Truman H. Baldwin, for the appellant.
    
      John P. Dunn, for the respondent.
   Ingraham, J.:

But one ^question is presented upon this appeal, and that is whether the property owners were entitled to have the report of the commissioners set aside and the case sent back to the commissioners, to enable the property owners to cross-examine a witness called on behalf of the city who had testified as an expert to the value of the property taken in the proceeding. It appears that Charles A. Berrian was called by the city as an expert to appraise the value of the property taken; that he testified that the value of parcel No. 1, which belonged to the appellant, was $15,373.56. He was cross-examined by counsel for the property owners, and was subsequently recalled and again cross-examined by counsel for the appellant. The testimony being closed and all of the parties having submitted such testimony as they desired, the commissioners made their preliminary report on the 28th day of March, 1902, and on the 29th of March, 1902, and thereafter, caused to be published in the City Record a notice that ■ said abstract of estimate and assessment had been so filed, and that the Commissioners would receive objections thereto at their office on or before the 19th day of April, 1902, and would be in attendance at their office on the 23d day of April, 1902, for the purpose of hearing these objections.” To this preliminary abstract of estimate and assessment the petitioner filed objections upon the ground that the awards were not a just compensation for the taking of the said lands. Upon a hearing before the commissioners upon these objections, Berrian, who had testified as an expert on behalf of the city on January 31, 1899, was, on May 1, 1902, subpoenaed by the appellant to appear before the commissioners; whereupon counsel for the appellant sought to examine the witness as to evidence that he had given in other proceedings in relation to other property in the locality. Such cross-examination was objected to by counsel for the city, and the objection was finally sustained. The commissioners' then made their final report, which was opposed by counsel for the appellant upon the ground that he had not been permitted .to cross examine the expert for the city. The court overruled this objection and confirmed the final report, from which the property owners appeal.

We may concede that these questions would have been proper when the witness was under cross-examination before the taking of testimony was closed; but we think that after both the city and the owners of the property had closed the evidence, and the commissioners had filed their preliminary estimate, the owners of property were not entitled as a matter of right to further cross-examine witnesses who had been examined and cross-examined before the preliminary estimate had been made.

By section 979 of the charter of 1897 (Laws of 1897, chap. 378) the commissioners of estimate and assessment were authorized to take testimony presented to them under oath. Section 980 provides that the commissioners, after hearing such testimony and considering such proofs as may be offered “ shall, without unnecessary ■delay, ascertain and estimate the compensation which ought justly do be made by The City of New York to the respective owners, lessees, parties and' persons respectively entitled unto or interested In the lands, tenements, hereditaments and premises so required for the improvement; and make a just and equitable estimate and assessment also of the value of the benefit and advantage of such improvement to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, ^hereditaments and premises not required for the said improvement, •and. prepare an abstract of their estimate and assessment.” By section 981 the commissioners were required to deposit in the bureau of street openings in the law department, the abstract of their estimate and assessment at least thirty days before their report should be presented to the court for confirmation, which abstract should state the several sums respectively estimated for or assessed upon each of said parcels, with the name or names, claimant or ■claimants, so far as ascertained by said commissioners; and they were also required to publish a notice for fifteen days stating their intention to present their report for confirmation to the court at a time and place to be specified in said notice, and that all persons interested in such proceedings or in any of the lands affected thereby having objections thereto, should file the same in writing, duly verified, with said commissioners within twenty days after the first publication of said notice, and that the said commissioners would hear parties so objecting at a place and at a time after the expiration of said twenty days to be specified in the notice. At the time and place named in said notice the commissioners were required to hear the person or persons who had objected to the said abstract and who might then and there appéar, and should have power to adjourn from time to time until all such persons should be fully heard. Section 983 provides that any one of the commissioners shall have power to issue a subpoena requiring any witness whose testimony is material or necessary to appear and testify on behalf of any party filing such an objection; and section 984 provides that after considering the objections, if any, and making any correction or alteration of their estimate or assessment, the said commissioners shall file their report, signed by them or a majority of them, in the office of the clerk of the county where the said lands are situated at least five days before the time mentioned in said notice for the presentation of said report to the court for confirmation, or the date to which the same shall have been duly adjourned.

-The appellant having objected to the preliminary abstract of the commissioners, was undoubtedly entitled to produce evidence to. sustain the objection; but a further cross-examination of the witnesses who had testified on behalf of the city and whose testimony had been completed was in the discretion of the commissioners, and a refusal to allow such a further cross-examination was not a legal error which required the court to send the proceeding back to the commissioners-.

While undoubtedly the court had power under section 986 of the charter to refuse to confirm the report where the confirmation would be inequitable and unjust, and where for any reason it should appear that any party to the proceeding should be entitled to a ■ further hearing before the commissioners, to justify such action it must appear that the property owners had been deprived of a substantial right to which they were entitled or that it would be inequitable or unjust to confirm the report. In this case it appears that the appellant did not apply to the discretion of the commissioners to allow further cross-examination. When the objection was made counsel for the appellant stated: “We are not appealing to the favor nor the discretion of the Commissioners, but to absolute right under the objections filed. We can try this ease over again if we want to and we are not asking a favor.” The questions asked the witness related to testimony that he had given before other -commissioners in 1900, two years after he had been examined and cross-examined in this proceeding. He was not asked to give his Opinion as to the value of property when title was taken by the city, but asked as to what he had testified to in another proceeding long after his former testimony had been given, a matter which was purely cross-examination and not competent as original testimony. We think the appellant had ho absolute right to a further cross-examination of the witness under his objections and that he was deprived of no legal right by the commissioners.

It follows that the order appealed from was right and it should be affirmed, with costs.'

Van Brunt, P. J., Patterson, McLaughmn and Laughlin, JJ., concurred.

Order affirmed, with costs.  