
    In the Matter of the Application of the Town of Guilford to Acquire Title to Real Property in Said Town, Owned by George Bradbury, for a Public Highway. George Bradbury and Wealtha Bradbury, Appellants; Town of Guilford, Respondent.
    
      Condemnation of land—review of a report of commissioners by the Appellate Division — the Special Term cannot receive affidavits as to value — when affidavits maybe read — the commissioners are not controlled by technical rules.
    
    An order made at Special Term, setting aside the report of commissioners of appraisal appointed in a condemnation proceeding, and ordering a rehearing before the same commissioners unlessithe defendants would stipulate to reduce the award, is appealable to the Appellate Division notwithstanding the peculiar provisions of sections 3371 aiid 3375 of the Code of Civil Procedure. .
    
      If the Special Term deems "the award excessive, it should set the report aside, but it has no power to modify the award for such a'cause:
    The Special Term has no power to receive'affidavits tending to show that the award was excessive.
    
      Semble, that it is only where some of the commissioners are alleged to have been guilty of misconduct or not to be disinterested, that affidavits may be read upon a motion to confirm the report.
    The findings of the commissioners will not be disturbed unless it is apparent that injustice has been done or that they have overlooked some material feature of the case or proceeded upon an erroneous principle or been influenced by hearsay or passion.
    In reaching their conclusion as to the value of a given piece of property, the commissioners are guided by-their own judgment and experience, rather than by the opinions of witnesses, and are untrammeled by technical rules of evidence and unrestricted as to their sources of information.
    Appeal by George Bradbury and another from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chenango on the 23d day of January, 1903, setting aside the report of commissioners appointed in condemnation proceedings and ordering a rehearing before the same commissioners, unless the defendants, appellants, stipulate to reduce the award made herein to the sum of $350, on the ground that the award was excessive.
    ■ Wordsvjorlh B. Matterson, for the appellants.
    
      Hubert L. Brown, for the respondent.
   Houghton, J.:

The defendants against whom these condemnation proceedings were prosecuted moved at Special Term for an order confirming the report of the commissioners in their favor.

On the coming on of the motion there were presented to the court on behalf of the town, and allowed to be read against the objection of the defendants, twenty odd affidavits expressing opinions that the award was excessive, and giving the estimates of the affiants as to what the award ought to have been. The Special Term ordered that the report of the commissioners be set aside and a rehearing had before the same commissioners, unless, the defendants stipulated to reduce the award made at $510 to $350, on the ground that the award was excessive.

Objection is made that such an order in condemnation proceedings is not appealable to this court.

In the .case of Manhattan Railway Co. v. O'Sullivan (6 App. Div. 572) the authorities, upon the power of the appellate court to review the order of the Special Term setting aside the report of commissioners in condemnation proceedings, are collated and discussed, and the conclusion reached that such an order was appeal-able, notwithstanding the peculiar provisions of sections 3371 and 3375 of the Code of Civil Procedure. The power of the court was deemed to be inherent to review, where a substantial right had been invaded,, although not especially conferred by the Condemnation Law. This decision was subsequently affirmed by the Court of Appeals on the opinion of the court below. (Manhattan Railway Co. v. O'Sullivan, 150 N. Y. 569.)

The Special Term could not modify the award of the commissioners. Section 3371 of the Code provides that in condemnation proceedings the court may confirm the report or may set it aside for irregularity or upon the ground that the award is excessive or insufficient ; but nowhere, is it given the power to modify it. The law requires that the award shall be made, not by the court, but by a commission of three disinterested freeholders appointed by the court. If the court deemed the award excessive it should have set it aside. (Matter of Central New York Tel. Co., 36 App. Div. 553.)

It was not proper for the court to allow the party against whom the report was made to read affidavits impeaching the report. A motion to confirm or set aside is not a. rehearing upon the merits of the matter on which additional proof can be given by either party. It is only where some of the commissioners are alleged to have been guilty of some misconduct or not to be disinterested that affidavits may be read upon those questions on an application to confirm the report. (Matter of Terminal Railway, 16 App. Div. 515.)

The defendants declined to stipulate to reduce the award to the amount provided in the order, and the order in legal effect is one setting aside the award. It becomes our duty to determine whether or not the Special Term should have confirmed the report of the commissioners, or whether the final result should be the sending of the matter back to the same commissioners or to new commissioners to be appointed by the court. (Manhattan Railway Co. v. O'Sullivan, 6 App. Div. 572.)

We see no reason why the award of the commissioners should not be confirmed'. The defendants’ premises lay adjacent to the • railroad and to a village. The petition of the town on the appoint.ment of the commissioners shows that the purpose of laying out the highway through the defendants’ lands was to consolidate two highways, which crossed the railroad at .grade, into one undercrossing. It does not appear how much excavation was necessary for the undercrossing of the highway laid out through defendants’ lands, but the commissioners viewed the premises and saw the situation.. The road went diagonally through the defendants’ lands, and, as some of the witnesses say, without the highway a street could have been laid through • the center and lots sold off from both sides; whereas, as cut by the highway, the lands were greatly injured. By agreement four witnesses, as to value, were sworn upon each side. Some of the witnesses sworn for the defendants put the difference in value as high as $600 ; and the witnesses for the plaintiff fix the difference from nothing to $150. Some of the witnesses took into consideration the fact that fences would have to be maintained upon the new highway, and others did not. The commissioners do not appear to have adopted any incorrect principle in determining the value of the property condemned, and for aught that appears they were men of character and intelligence. They were selected by a justice of this court from his own county of Broome, and were,., therefore, not residents of the county of Chenango in which the town of Guilford is, and were, presumably, not influenced by any local prejudice or bias. Although only about an acre and a half of a ten-acre tract was taken by the road, and a three-cornered piece of land, which was conceded to be worthless, yet the commission thought, after viewing the premises and hearing the witnesses, that the1 damage was $500.

• The practice in cases of this character is not to disturb the findings of the commissioners, unless it is apparent that injustice has been done, or that they have overlooked some material feature of the case, or proceeded upon an erroneous principle, or been, influenced by hearsay or passion. And in reaching their conclusion as to the value of a given piece of property, they are guided by their own judgment and experience, rather than by the opinion of witnesses, and are untrammeled by technical rules of evidence and. unrestricted as to their sources of information. (City of Syracuse v. Stacey, No. 1, 45 App. Div. 249; Manhattan Railway Co. v. O'Sullivan, 6 id. 572; Village of Port Henry v. Kidder, 39 id. 640; Matter of Manhattan Railway Co. v. Comstock, 74 id. 341.)

There is nothing in the record showing that the award is excessive, and it is by the record alone that the court must be guided.

The order appealed from should be reversed, with ten dollars’ costs and disbursements, and the report of the commissioners' confirmed.

All concurred; Smith, J., in result.

Order - reversed, with ten dollars costs and disbursements, and report of commissioners confirmed. .  