
    
      In re Kings County El. R. Co. In re Bryan.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1890.)
    Eminent Domain—Procedure—Report op Commissioners.
    In condemnation proceedings for the construction of an elevated railroad under the New York rapid transit act, (Laws 1875, c. 606,) commissioners appointed to ascertain the compensation certified, at the request of the railroad company, that they made no allowance on account of any benefits to the- parties from the construction of the road. The railroad company appealed from the confirmation of the report. Meld, that the court at special term could recommit the report to the commissioners to report further whether any benefits had accrued to the property from the railroad, and if so the value thereof.
    Appeal from special term, Kings county.
    Application by the Kings County Elevated Railway Company to acquire title to certain real estate or interests therein, under Laws N. Y. 1875, c. 606. Commissioners appointed thereon to ascertain and appraise the compensation to be made to Joseph Bryan and others made a report awarding compensation to said Bryan, which was confirmed. Thereafter, on motion of said Bryan, an order was made at special term recommitting the report to the commissioners, and requiring them to make anew report, stating “whether, in their judgment, any benefits have accrued to the property mentioned in said report from the railroad, and if so what is the cash value of such benefits, and also whether or not the said benefits have been deducted from the damages in estimating the same,” etc. From this order the railway company appeals. For proceedings to enjoin the construction of the road on the ground that no compensation had been made to the abutting owners, see 1 N. Y. Supp. 383.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Leslie W. Russell and Welton Percy, for appellant. Smith, Woodward & Buckley, for respondent, Bryan.
   Pratt, J.

Commissioners were regularly appointed, and made their report, which was confirmed. In their report the commissioners certified as follows, to-wit: In determining the amount of such compensations, we made no allowance or deduction on account of any real or supposed benefits which the parties in interest may derive from the construction of the road. ” Although this clause was inserted in the report at the instance of the counsel for the railroad, an appeal has been taken by the railroad company, and it may be possible that it was error on the part of the commissioners not to determine and take into account in assessing the damages any supposed benefits that might accrue to the owner of the lands from building the road, although it would seem that if upon hearing the railroad company made no claim for benefits, it ought not to be regarded as error if the commissioners failed to consider that question. It is but just, however, to both parties, that the report should be sent back in order that the commissioners may consider and pass upon this question, and if necessary amend their report. The power of the court at special term to make such an order cannot be questioned. In re New York Cent. & H. R. R. Co., 64 N. Y. 60; also, In re New York, L. & W. R. Co., 29 Hun, 602, affirmed 93 N. Y. 385. We think the discretion was properly exercised by the court at special term in making the order appealed from, and it must be affirmed, with costs.  