
    Matter of the Application of The Manhattan Railway Co., v. William G. Comstock, as Substituted Trustee, under the Last Will and Testament of Nehemiah U. Tompkins, Deceased, et al., Relative to acquiring Title, to Certain Real Property, Etc., Defendants.
    (Supreme Court, New York Special Term,
    June, 1901.)
    Condemnation proceedings — Assessment of fee damages must foe of the date of the award.
    An assessment of fee damages must be of the date of the award, and where the report of the commissioners found "the damages as existing at a date nearly a year prior to the award the court refused to confirm the report.
    Motion to confirm report -of commissioners appointed to 'ascertain the compensation to be made the defendants herein, as owners of the property taken for the public use and motion by the guardian ad litem for an extra allowance.
    Ritch, Woodford, Bovee & Wallace (C. N. Bovee, of counsel), for motion.
    Charles A. Gardiner (William H. Godden, of counsel), opposed.
    James C. Bushby, guardina ad litem for certain infant defendants.
   Giegerich, J.

This matter was sent back to the commissioners by an order of this court, which invested them “ with the same jurisdiction, powers and duties as they possessed upon their original appointment,” and which further authorized and directed (them) to meet * * * on the 26th day of April, 1901, at 2 o’clock in the afternoon of that day, and proceed herein according to law.” At such meeting an attempt was made on the part of the railroad company to reopen the hearing of evidence and to recall certain witnesses to explain and correct portions of their testimony, and also to show that very important changes had been made since the last previous hearing of the commission, consisting in the demolition of the old structure standing upon one of the lots in question and the erection instead of a modern and costly building. This motion was denied by a- divided vote of the commissioners, the chairman alone favoring the application and refusing to sign the present report upon various grounds which he has specified in a memorandum annexed thereto. The report purports to ascertain the damages as of June 26, 1900, the date of the first report referred to above, although the present report is dated and was in fact signed on the 20th day of May, 1901. On behalf of the railroad company various objections are made to the confirmation now moved for, but only one of these need be considered, namply, that the report does not find the damages existing at the time the award was made, but as existing at a date nearly a year previous, this objection being well taken, in my view. The rule applicable in such cases is stated in Matter of New York Elevated Railroad, 76 Hun, 384, 388, as follows: “ The inquiry in condemnation proceedings is to be directed to an ascertainment of the net result to the property as of the time of the award. * * *' The assessment of fee damage is eo instanti as of the date of the award.” H the rule be as just stated, it follows that the commis-, sioners had no power to make a report nunc pro tunc, as was attempted in this case, and the report, therefore, cannot be confirmed. It results that the motion to confirm the report of the commissioners must be denied; that the report be set aside for the irregularity noted, and a rehearing be had before the same commissioners. The motion for an extra allowance made by the guardian ad litem may be renewed when the report is presented for confirmation hereafter. Order to be settled on two days'" notice.

Ordered accordingly.  