
    Matter of Amsterdam Avenue Between One Hundred and Twenty-ninth and One Hundred and Thirtieth Streets.
    (Supreme Court, New York Special Term,
    March, 1907.)
    Eminent domain: Condemnation proceedings — Hearing by commis-
    sioners— Admissibility and rejection of evidence — Evidence given on former hearing; Measure of compensation — In general — Valuing lot with open exposure as inside lot.
    In a proceeding to acquire lands for streets in the city of New York, where the report of the original-commissioners of estimate and apportionment was not confirmed and new commissioners were appointed who were directed to reconsider the previous report and the subject matter thereof and return it corrected and revised or to make a new report, it was error to reject portions of the testimony given before the first commissioners when offered by property owners
    A lot having a space of twenty-five feet between it and the building on the adjoining property, giving it light andair on three sides, should not be treated as an ordinary inside lot, although the city owned the adjoining property and might build upon it.
    
      Motion to confirm the report of commissioners.
    ' 'Edward H, Hawke, Jr., for claimant.
    Win. B. Ellison, Corporation Counsel, for city of Hew York.
   Blanchard, J.

This is a motion to confirm the report of commissioners of estimate and appraisal. Two sets of commissioners have been appointed in this proceeding. The first commission reported and both the city and owners of the property ojiposed the confirmation of its report, and it was rejected by the court and new commissioners were appointed, and it is their report which is now before the court for confirmation. In appointing this new commission the court directed it to reconsider the previous report, and the subject-matter thereof, and return it corrected and revised, or to make a new report. The first commission appointed estimated the damages of the property-owner at $32,000, and the second commission estimated the damages at $27,000. The owner opposes the confirmation. During the hearing the property-owner offered in evidence certain portions of the testimony given in the hearing before the first commission and it was rejected. I think this was error in view of the language of the order appointing the commission. If the report of the previous commissioners was to he reconsidered by the new commission, it would seem that the testimony on which it was based should also be considered by it. Moreover, I am of the opinion that the commission erred in treating the property to he taken as an ordinary inside lot. There was a space of about twenty-five feet between it and the building on the adjoining property, which gave it an advantage over an ordinary inside lot, in that it thus had light and air on three of its sides. "While the circumstance that the city owned the adjoining property and possessed the right to build upon it any time might lessen if not destroy the value of the advantage referred to, it is, nevertheless, an element of damage which the commissioners should have taken into consideration. The report will be referred back to the same commission to take into consideration the testimony given in the first commission and the value, if any. of the advantage of the property in question not being an ordinary inside lot.

Ordered accordingly.  