
    Matter of the Application of John A. Bensel and Others, Etc.
    (Supreme Court, Westchester Special Term,
    June, 1910.)
    Eminent domain — Condemnation proceedings: Confirmation of report.
    An award made by commissioners of estimate and appraisal in the city of New York, for a less sum than the estimate of any of the witnesses on either side, without a statement in their report of any basis or reason for their conclusion should not be confirmed.
    Application for the confirmation of the report of commissioners of appraisal, appointed pursuant to the laws to provide an additional water supply for the city of Hew York, relating to section Ho. 15, southern aqueduct department.'
    W. R. & A. S. Oglesby, for claimants.
    Archibald R. Watson, Corporation Counsel (I. J. Beaudrias, of counsel), for city of New York.
   Tompkins, J.

The Knollwood Park Company obj ects to the confirmation of the report of the commissioners as to parcels Hos. 1072 to 1086, inclusive, on the ground that there is no evidence to support the awards as made, and that they are wholly inadequate.' The awards are very much less than the lowest values fixed by the petitioner’s witnesses. For instance, the tract known as Eos. 1071-1079 is valued at the sum of $51,840 by the owner’s highest expert witness, and at the sum of $20,197 by the petitioner’s lowest expert, while the award made by the commissioners is the sum of $12,716.

Parcel Eo. 1082 was testified by the claimant’s three witnesses to be worth $13,000 and by the petitioner’s witnesses to be worth $9,200, while the award is $5,200, and so it is with every parcel. The award is considerably less than the lowest figure given by the petitioner’s witnesses, and I am unable to find any testimony in the record to support these awards. Eor do the commissioners in their report give any reason for disregarding all the evidence given before them, nor do they assign any reason for their awards or give the theory upon which they proceeded in reaching their conclusions.

While it is true that the reports show that they viewed the property and, after “ making said views and examinations and carefully considering the same, did ascertain and determine the compensation which ought justly to be made,” etc., yet it is my opinion that, in these proceedings where the statute requires the commissioners to hear the proofs and allegations of the parties and reduce the testimony to writing and file it with their report, they cannot disregard all the testimony and fix an amount that is.without any support in the evidence, at least not without stating in their report some basis for-their conclusions, or some theory of their own, or some reason appearing to them for their conclusions, outside of the testimony.

It may be that their several views of these premises and the information thereby acquired and information from other sources and their own experiences and judgment satisfied them that even the petitioner’s witnesses gave figures far beyond the true values of the parcels in question; but, in that event, and to justify the awards as made, I think the commissioners should have given in their report their reasons for disregarding all the testimony and for fixing the awards as they did. As the record stands, and according to all the testimony of the sworn witnesses, the awards are altogether inadequate.

In the Matter of Simmons (Ashokan Reservoir), 132 App. Div. 574, the witnesses for the petitioner fixed the value of the property at $9,000, and the commissioners made an award of $7,750, and the Appellate Division of the third department refused to disturb the award, for the reason that it appeared in the record that the property in question had been assessed at $1,200, and that that was some evidence of value appearing in the record which the commissioners were presumed to have considered; and, on the question of the duty of the commissioners respecting the evidence, the court said: “It is quite true that the commissioners were not at liberty to disregard the evidence which the parties produce. It is said that although the commissioners may act upon knowledge acquired aliunde the record, nevertheless, knowledge thus acquired should only be used for the purpose of weighing and giving proper effect to the record evidence, and that their determination when reviewed on appeal must appear to have some support in the evidence appearing in the record. It is urged that when a party takes property by the right of eminent domain, and produces evidence as to the value of such property, it may justly be assumed that the value thus fixed represents the minimum which a court should be willing to allow for property thus forcibly taken; that it is reasonable to assume that when a party places á value upon property which-he is willing to pay therefor, and produces expert witnesses to establish such value, the value as thus estimated bears such an element of probability that it should be accepted. We do not think that this case presents that question. The order appealed from shows on its face that the appellant’s property was assessed at $1,200. This is some evidence of value appearing in the record which the commissioners are presumed to have considered, and we are not disposed to hold that $7,750 is an inadequate compensation for property assessed at $1,200 by public officers personally acquainted therewith.”

In the case at bar, nothing appears in the record on the question of value, save the testimony of the several witnesses. In Matter of the City of New York (Blackwell’s Island Bridge), 66 Misc. Rep. 497, Mr. Justice Giegerich says of proceedings similar to these: “The duty prescribed by section 1437 of the Greater Hew York charter, of viewing the lands, tenements, hereditaments and premises, required for public uses and purposes, does not therefore mean that the commissioners may base their award wholly upon the information obtained by them at the view, and disregard altogether the testimony taken in the proceedings before them. On the contrary, such view is for the purpose of enabling them to better understand the evidence (Perkins v. State of New York, 113 N. Y. 660; Matter of Thompson, 121 id. 277; Manhattan Ry. Co. v. Comstock, 74 App. Div. 341; Matter of St. Nicholas Park, N. Y. Law Journal, Nov. 21st, 1900).’”

Even though the commissioners had a right to disregard all of the sworn testimony and base their award upon their view of the premises and information obtained from other sources, their report should show how and by what process of reasoning their conclusions were obtained, especially where such conclusions are not supported by any testimony, or any other fact shown by the record; so that the court, in reviewing their report, may have something before it to enable it to determine whether or not a correct theory was adopted and followed by the commissioners.

The report of these commissioners as to the Knollwood Park Company’s property should be set aside and the matter referred back to the same commissioners for a rehearing and a new or supplemental report thereon.

Application denied.  