
    Walter Langdon, Pl’ff, v. The Mayor, &c., of New York, Def’t.
    Motion to confirm referee’s report and for judgment.
    
      W. H. Peckham, W. J. Marrin and T. L. Ogden, for pl’ff; T. P. Wickes, for def’t.
   Van Brunt, P. J.

—A similar motion upon the former report of the referee

herein came before this court upon a previous occasion and at that time the court being of opinion that the valuation of the referee was too low and the claim of the plaintiff too high, and that the referee had excluded competent testimony which might have afforded a fair ground upon which an estimate of value might he founded, referred the case hack to the referee to take such additional proof as might be offered by the parties. Upon such rehearing before said referee such additional testimony was taken, and founding his decision thereon the referee has reported what seems to this court to he a fair valuation of the rights of which the plaintiff has been deprived by the action of the defendant.

It is not necessary in the present disposition of this motion to discuss the evidence at length which was introduced on either side, as such evidence upon the previous motion was examined and considered and a conclusion come to in respect thereto. It was there plainly intimated in the opinion of the court that if the testimony which was excluded had been received a basis would have been formed upon which a proper award by. way of damges might have been made to the plaintiff.

It is claimed upon this motion by the plaintiff that the valuation of the referee is too low, and by the city that it is too high. But we think upon a consideration of the whole case that the referee’s report should now be confirmed and judgment given to the plaintiff based upon the valuation found by him at the time of the appropriation of the said property by the city and interest thereon.

There is also a motion for an extra allowance, which motion in our opinion should he granted and the plaintiff allowed five per cent upon the amount, recovered.

Barrett and Patterson, JJ., concur,  