
    In the Matter of the Application and Petition of John A. Bensel and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate, etc., in the Town of Mt. Pleasant, Westchester County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. (Kensico Reservoir, Section No. 11.) Jonathan C. Pierce, as Executor, etc., of Samuel K. Stoutenburgh, Deceased, and Others, Appellants; Board of Water Supply of the City of New York, Respondent.
    Second Department,
    May 26, 1910.
    Eminent domain — court — power to remove commissioners — motion — relief.
    The Supreme Court may, in the exercise of judicial discretion, remove commissioners appointed by it in condemnation proceedings upon an appropriate application.
    A motion to relieve commissioners of a' consideration of the value of certain parcels and to appoint new commissioners for those parcels is in effect a motion to remove the commissioners.
    Although one commissioner may be disqualified, the fact that his. associates sat with him while hearing some of the testimony does not disqualify them.
    Appeal by Jonathan C. Pierce, as executor, etc., and others, claimants, 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 lltli day of March, 1910, denying the appellants’ motion for the removal of commissioners of appraisal herein.
    
      
      Woodson R. Oglesby [ Wilson M. Powell and Wilson M. Powell, •Jr., with him on the brief], for the appellants.
    
      Henry T. Pylcmam, [Archibald R. Watson with him on the brief], for the respondent. .
   Carr, J.:

This is a condemnation proceeding by which the city of New York seeks to acquire certain real property in Westchester county for the enlargement of its water supply system. The proceeding was begun under the provisions of chapter 724 of the Laws of 1905, as amended. . That statute, in order to expedite the work of condemnation, authorizes the division of all the ■ territory sought to be condemned into sections, and provides for the appointment of commissioners to fix the values of the respective parcels of land embraced within the various sections. It prescribes practically that no more parcels be assigned to each set of commissioners than can be disposed of in one year. An order.was made at Special Term appointing commissioners'for a section embracing certain parcels known as “ Mos. 798, 799, 801 and 802.” These, parcels, though numbered separately on the condemnation map, appear to constitute one large farm with its improvements, and they, are owned by the appellants. Their present grievance is as follows: The court appointed, as commissioners for the section in which these parcels are embraced, three gentlemen, Messrs. Ingraham, Van Cortlandt and Walsh, who duly qualified, made a view of the property and proceeded with the taking- of testimony. After the proceedings had progressed to a short extent the appellants learned that one of' the commissioners, Mr. Walsh, had, before his present appointment, acted as official transfer tax appraiser in Westchester county, and, in the discharge of his official duty, had made an appraisal of one of the parcels in question for the purpose of fixing the transfer tax thereon which accrued through'the death of some of the former owners of undivided interests, therein. Mr. Walsh did not make his. report as transfer tax appraiser until after he. had qualified as commissioner in this proceeding. The appellants contend that Mr. Walsh, because of this circumstance, is not qualified to sit as an impartial judge of values in this proceeding, inasmuch as he has already-committed himself to an appraisal in the transfer tax matter, above which he may not go in this proceeding, no matter what be the evidence, without exposing himself to the imputation of error or inefficiency in the tax proceeding. They claim, further, that this disqualification extends to Commissioners Ingraham and Van Cortlandt, from the simple fact of the association with Mr. Walsh in this proceeding. On these grounds they made a motion at Special Term, through an order to show cause, for an order “ relieving the Commissioners of Appraisal heretofore appointed herein- from the consideration of the parcels as designated in the petition and damage map herein as Nos. 798, 799, 801 and 802, by reason of the legal disqualification of one of said Commissioners to act as to said parcels,” and for an order appointing other commissioners to appraise the compensation to be made for these specific parcels. This motion was denied by the Special Term wholly on the express' ground recited in its order, “that the Court has no power to grant the same.” From the order so entered this appeal was taken.

I think the learned Special Term was in error in denying- the motion on the sole ground of lack of power in the court. The question presented was one addressed to its sound discretion. The power to grant or deny the relief sought is obvious. Section 23 of the act, under which the proceedings are being conducted, provides as follows: “And the said court may at any time remove any of said commissioners of appraisal who, in its judgment, shall be incapable of serving, or who shall for any reason in its judgment be an unfit person to serve as such commissioner. The cause of such removal shall be specified in the order making the same.” Had the act been entirely silent on this question, the court would have, nevertheless, inherent power to make such removal. (Matter of N. Y. C. & H. R. R. R. Co., 64 N. Y. 60; Matter of Daly, 189 id. 34, 38.) It is argued, however, that the motion made by the appellants was not to remove the commissioners, but simply to relieve them of the consideration of the value of the specified parcels, and to appoint new commissioners for these parcels. This is equivalent to a request for their removal as to these parcels, and while the words used are softer and more euphemistic, the meaning is exactly the same. The object plainly sought was the substitution of new commissioners. The court at Special Term had power, in the exercise of its sound discretion, to grant all or a part of the relief sought. While it is not for us, in advance of the exercise of siich discretion, to make any intimation as to how it should be exeiv cised, it is of course apparent that Mr. Walsh might be regarded, because of his former official action in regard to some of the parcels, as “ incapable ” or unfit,”, not at all in any moral or purely per-, sonal sense,'but in the larger sense which requires all judicial proceedings to be had not only with impartiality and justice, but also with such appearances of justice that litigants may feel and believe that" their pause has not been prejudged before they have had' then-day in court. The (Considerations which cover the case of Mr. Walsh may not apply at all to that of Commissioners Ingraham and Yan Oortlandt, for mere association does not breed always the same results in thinking.

I recommend, therefore, that the. order be reversed, with ten dollars costs and disbursements,'and that the matter be remitted to the Special Term to be disposed of in the exercise of its discretion.

Woodwakd, Jehks, Bore and Thomas, JJ,, concurred.

Order reversed, with ten dollars costs and disbursements, and ' matter remitted to the Special Term to be disposed of in the exercise of-its discretion.  