
    (52 Misc. Rep. 601)
    NEW YORK CENT. & H. R. R. CO. v. SAYLES et ux.
    (Supreme Court, Special Term, Herkimer County.
    February, 1907.)
    Eminent Domain—Award—SinmciENCY.
    A confirmation of a report of commissioners in condemnation proceedings, opposed on the ground that the award was inadequate, as the land had a special value other than for farm purposes, will be confirmed where the evidence, though justifying a larger award, was sufficient to sustain the findings of the commissioners.
    
      Condemnation proceedings by the New York Central & Hudson River Railroad Company against George M. Sayles and wife. Motion to confirm report of commissioners. Report confirmed.
    Henry Purcell, for the motion.
    J. H. O’Brien, opposed.
   DEVENDORF, J.

This is a motion to confirm a report of commissioners appointed to ascertain the compensation to be made to the defendants for certain real property taken by the plaintiff for railroad purposes. The confirmation- is opposed on behalf of the defendants on the ground that the amount awarded is inadequate.

The land adjudged to be taken consists of 2.95 acres of land, and is claimed to have a special value, other than .that for farm purposes, by reason of a sand pit and muck bed located thereon. Considerable evidence was taken in the matter, and I think an award considerably larger than that rendered herein would have been well sustained by such evidence. I am of the opinion, however, that there is sufficient evidence in the case to sustain the findings of the commissioners as actually made; and, while it may be said that other minds might differ as to the proper amount to be allowed, yet I do not think, under the showing, that the court would be justified in refusing to confirm the report, or in sending it back and requiring the commissioners to specify, in a supplemental report, the particular elements of the damage allowed. The value of this property was a definite question of fact to be determined by the commissioners, as they viewed it, from the evidence and proceedings before them and from their inspection of the premises. They have rendered their decision as to such value, and, I think, as above stated, there is evidence, if true, sufficient to sustain it. Therefore I am not inclined to interfere with such report, and the same is accordingly confirmed.

Upon this motion the defendants ask that, if confirmation is granted, an extra allowance be made in their behalf herein. I agree with them in that regard, and think they are entitled to an extra allowance of 5 per cent, upon the award, that they may be saved harmless, as far as may be, from costs and disbursements.  