
    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, Respondents, to Acquire Real Estate, etc., for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. In the Matter of Hill View Reservoir, Section No. 1, Parcels Nos. 1 and 3. Arabella D. Huntington and Charles H. Tweed, as Executors, etc., of Collis P. Huntington, Deceased, Appellants.
    Second Department,
    November 18, 1910.
    Eminent domain — condemnation of land — method of ascertaining damage — land useful principally as building lots.
    Where it appears that land taken by eminent domain is within a half mile of New York city and but a short distance from other settled and improved' communities; that its greatest value is- in its availability for búilding sites, and that other land on the opposite side of the same, street, when sold on fore-. closure, brought a larger sum divided into building lots than was offered for the parcel in gross, it is improper for the commissioners to estimate the damages by valuing the land 'as divided into two parcels of one acre and three acres respectively. The land should be valued as if divided into building lots.
    Hirschberg, P. J., dissented.
    Appeal by Arabella D. Huntington and Charles H. Tweed, as executors, etc., from an order of the Supreme Court, made at the •Westchester Special Term and entered in. the office of the clerk of the county of Westchester on the 18th day of June, 1909, denying the appellants’ motion to confirm the report of commissioners of appraisal in condemnation proceedings, and also from, an order entered in. said clerk’s office on the lltli day of October, 1909, amending the said original order.
    ' Tompldns Mcllvaine [Albert Southard ‘ Wright with him oh the brief], for the appellants. •
    
      Henry T. Dyhman [Archibald R. Watson with him on the brief], for the respondents. " . . •' •
   Thomas, J. :

Did the commissioners adopt an'improper method of ascertaining the damage? From the fact that they received evidence of the value of the premises as if subdivided into lots according' to a map it is inferred that the awards are based thereon. The property consists' of parcels, Ho. 1 containing 1.018 acres, for which the award was $14,500, and parcel Ho. 3, containing 3.352 acres, for which the award was $31,500. Th.e parcels westerly abut Central. Park avenue, which is an improved thoroughfare from Yonkers to Hew York, with gas street lamps and double lines of trolley cars, and are separated by Jerome avenue, which is passable; but not maintained suitably for travel. " The parcels are within a half mile of the line of the city of Hew, York, and the distance in time from the city hall by steam car or by the trolley and elevated railroad is-about one hour. To the southwest, some 1,200 to 1,500 feet, is Lincoln Park, about a half mile to the northwest is Hillview Park, within 3,000 feet is Wakefield Park, while Lowerre station is from 1,000 to 1,500 feet distant. : These are settled and improving communities, and - a desirable part of Yonkers is 1,000 feet away. Parcel Ho. 1 is clear, dry and shaded. Parcel Ho. 3 has a rough surface and is covered with trees and undergrowth. The property in the vicinity has not been used for' residences, nor with a single exception have there been sales for such purpose, but this is in some degree due to ■a policy of increasing holdings, and refusal, or disinclination to sell. . Those, who had, kept and added. But it cannot be denied that the lands have their greatest value in their, availability for sites for houses. The witnesses for the city value ■ each, piece , at $5,000. So 4.370 acres of land are'worth $10,00.0. For what purpose? Manifestly not for farming or gardening purposes. The value must consist .either in a present demand for build-' ing purposes, or the probability of such demand in the' future. Their present vfilue'indicates present or future .use for such purpose. • The owner’s experts estimated the value for sucli purpose by taking imaginary lots, one by one and stating its market value. That is,, tlieir statement was that the lots, identified by their several numbers, would, if offered, bring the prices named, and, so an aggregate value of $10.7,150 was asserted. What knowledge, information or experience did the witnesses have. that, enabled them to reach such sum ? Essentially it is a sale upon foreclosure of the property west of Central avenue, known as the Kneeland sale. That land was similar to this in physical condition, was subject to a mortgage covering also this land. By direction of the court the mortgaged land, excluding the land taken, was offered first in gross, and thereupon in plots of about 50 by 100. The sums bid for plots exceeded the bid for the land in gross. The sale was in September, , 1907. The city took title to the lands, in question in May, 1907. The prices received on such sale would fully, justify the awards, if ■ it were inferable that the present land would have sold equally well in lots in May, 1907. There is nothing to show that they would not. They are located as favorably, and have at least equal advantages. The experts for the city deem the sums bid at the Kneeland sale as extravagant, and far out of harmony with salés in neighboring localities. If the land then sold were here involved, those witnesses would doubtless state that it was not lot property, that there was no • demand for it, and it could not be sold as such. But there was'a demand for it, and it did sell as lot, property, and if the land taken by the city had been offered for sale at the same time, there is nothing whatever to dispute the conclusion that it would have sold equally well. The simple issue is, shall the opinion of the city’s experts be accepted against an uncontradicted fact? I prefer undisputed history to disputing expert evidence. The Knee-land sale was public, fair, attended; the lots were wanted, the bidding was active and genuine. There were then, as now, no lots save on maps, " The result is informing. It is just the instruction needed to solve the present question. It took place at such time and under such circumstances as advise the commissioners and the court of the very facts needed to be known to decide in this proceeding, viz.: Was this land, when the city took it in May, 1907, valuable for sale in lots, and was there a demand for it in such subdivisions, and what were the lots worth. The Kneeland sale answers clearly every pertinent question and leaves nothing in doubt. This court cannot amend the report of the commissioners, but the order should be reversed and the proceedings remitted to the commissioners-to amend their report by inserting the names of the appellants as the owners of the parcels in question and as. entitled to the award.

Woodward, Burr and Rich, JJ., concurred ; IIirsohberg, P. J., dissented. •

Order reversed, with- ten dollars costs and' disbursements, and proceedings remitted to the commissioners of appraisal for disposition in accordance with the opinion of Thomas, J.  