
    In the Matter of the Application and Petition of J. Edward Simmons and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate for and on Behalf of the City of New York, Respondent, etc., in the Towns of Yorktown and Cortlandt, Westchester County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water, etc. (Catskill Aqueduct, Section No. 1, Parcel No. 40.) Peekskill Ice Company, Appellant.
    Second Department,
    September 10, 1912.
    Eminent domain— condemnation of lands for aqueduct, city of New York—amendment of petition, maps and proceedings.
    Under the authority of section 23 of chapter 724 of the Laws of 1905, permitting the court to amend any defect or informality in proceedings to • condemn lands for an additional water supply for the city of New York, the court cannot amend the petition, maps and all proceedings for the acquisition of lands for the Catskill aqueduct, so as to cause the city of New York to withdraw rights of way reserved to the owner, and to grant ways that were not reserved, and thereby diminish the compensation that was due the claimant when the title passed to the city.
    Hirschberg, J., dissented.
    Appeal by the Peekskill Ice Company from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Westchester on the 6th day of September, 1911.
    
      Leverett F. Crumb, for the appellant.
    
      H. T. Dykman [Archibald R. Watson with him on the brief], for the respondent.
   Thomas, J.:

The proceeding is to acquire land for the Catskill aqueduct. The order appealed from was made on September 6, 1911, and is that the petition, maps and all the proceedings herein be * * * amended so that the city of New York at its own expense shall he obliged to construct and leave open forever the rights of way shown on the plan and profile attached to the affidavit of J. Waldo Smith [petitioner’s chief engineer] annexed thereto, across Parcel 40, the north one to a maximum grade not to exceed nine per cent, and the south one to a maximum grade not to exceed nine per cent, as substituted for the rights of way shown upon the filed maps herein,” and that the Commission give counsel for all parties in this proceeding ample opportunity to submit such further testimony as is made necessary and material by the foregoing order.” The land affected includes a pond and contains 7.318 acres lying on the east side of Locust avenue in the town of Cortlandt, from which the city has taken 3.665 acres, which comprise the entire frontage on the avenue, whereby the land remaining to the claimant is without access, except as the original petition and map combined may make provision for rights of way towards the the north and south ends. It seems that both ways were proven so inexpedient or difficult as to increase the consequential damages to the land not taken, and that in building the aqueduct the northern right of way proposed was entirely cut off, so that the rights of way as laid down on the original map cannot be had. For the purpose of furnishing proper ways and thereby lessening the damage, the court has allowed two other and different rights of way to be substituted, as shown on the new map, and the petition amended accordingly. The engineer states that the new ways are substantially in the same position as the ways first shown, but with lighter grades. An inspection of the new maps shows that the ways do not occupy the same portion of the land taken, or the same amount thereof. By due proceedings of the board of estimate and apportionment and the board of water supply, the appointment and qualification of commissioners of appraisal herein, the title to the land vested in the city on February 16, 1907. Thereafter two trials were had. In one the report of the commissioners was set aside, while in the other the evidence had been closed before the motion for the present order was made. So far as appears, Smith, the engineer, is the sole authority for the present substitution of the land taken with new rights of way for whatever vested in the city in February, 1907. In other words, the engineer acting through the court would cause the city to withdraw ways reserved to the owner, and to grant ways that were not reserved, and thereby diminish the compensation that was due the claimant on February 16, 1907, when the title passed and all rights were fixed, and compensation due to be ascertained and paid thereupon. It is suggested that the case was tried upon the theory of giving practicable rights of way, but, when the commissioners were of late asked to adjourn to permit the motion for the amendment to be made, the chairman said that all testimony already given concerning the right of way and grades would be entirely inapplicable, and although the counsel for the city did not so consider, the important fact is that the chairman of the commission appreciated that the amendment would require new testimony and new consideration, and so, indeed, the order provides. The city had ample time after 1907 to move, and while it is not just that after so ^protracted litigation the matter of consequential damages should be reconsidered, yet that could be met measurably by imposing terms. But there is no power. The city took with reservation of easements. Thereupon it owed the claimant compensation. It dictated the purchase, and cannot undo it in any degree, nor by shifting, or resubstituting, or reproviding ways can it discharge in the least what it owes. Why then should its engineer attempt it, or the court interpose maybe to subtract something from the debt, by creating new easements ? The order does not amend a defect, or informality, as permitted by statute. (Laws of 1905, chap. 724, § 23.) It recasts a conveyance and bargains anew. In Matter of Bensel (140 App. Div. 257) it was pointed out that the amendment of the petition was to conform to. the map so as to “make both speak more precisely and definitely regarding the intent of the city as to the land and the rights therein to be taken, and not to express an intent to take other or different lands. ” There is in the present instance no attempt to make clear the intent of the city. It is manifestly to change the intent and to express one intent in lieu of another.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Burr, Woodward and Rich, JJ., concurred; Hirschberg, J., dissented.

Order reversed, with ten dollars costs and disbursements, and. motion denied, with ten dollars costs.  