
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring the Land Necessary for the Opening of Fordham Road. John B. Haskin, Jr., Appellant; The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      Wharf property on the Harlem river may be condemned, in proceedings by the board of street opening and improvement — what must be considered in making the award.
    
    "Wharf property lying upon the easterly shore of, and extending into, the Harlem river, between high-water mark and the bulkhead line, as established by the United States government in 1890, may be acquired for street purposes in proceedings taken by the board of. street opening and improvement of the city of New York, and it is not necessary that the proceedings should be taken by the department of docks.
    In determining the value of such property, the commissioners appointed in the proceedings should take into consideration its location, the improvements made thereon and its present and prospective earning capacity, in view of the use to which it may be put.
    Appeal by John B. Haskin, Jr., the owner of certain property desired to be acquired by the respondent, from an order of the "Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 30th day of October, 1901, denying his motion to vacate the proceeding for the acquiring of certain real estate for the opening of Fordham road in the city of Yew York, and granting the motion of the mayor, aldermen and commonalty of the city of Yew York to confirm the final report of commissioners of estimate and assessment,
    
      Abel Crook, for the appellant.
    
      John P. Dunn, for the respondent.
   McLaughlin, J,:

This appeal is from an order denying a motion made by a property owner to vacate and set aside proceedings taken for the purposes of acquiring title to certain land for a public street in the city of Yew York, and from an order which confirmed the final report of the commissioners of estimate and assessment in reference to the property taken.

The premises affected by the appeal lie upon the' easterly shore of and extend into the Harlem river, between high-water mark and the bulkhead line, as established by the United States government in 1890. The appeal involves what is known oh the damage map-as lots Yos. 2 and 3, the appellant claiming title to the latter,, together with an easement, for the purposes of passage and repas-sage over the former. The proceeding was instituted by the city of Yew York by and through the board of street opening and improvement, and one of the principal grounds urged for the reversal .of the order is that the court did not acquire jurisdiction, inasmuch as-the proceedings were instituted and prosecuted by such board, and that under the statute wharf property, of which the appellant’s consists, can only be acquired through proceedings taken by the department of docks. After examination of this objection wé have reached the conclusion that it is not well founded. The city of. Yew York, acting through the board of street opening and improvement, had the right to take the same for public purposes and in the-manner here adopted. The appellant’s property consists of a wharf on the easterly side of the Harlem river, upon which- has been erected a building, piers and bulkhead. The commissioners of estimate and assessment awarded as damages to unknown owners for the. taking of parcel Yo. 3 the, sum of $4,920.75, and as interest thereon from the date when the title vested in the city the sum of $1,158.83, making in all the sum of $6,079.58, and for parcel No. 2 to the city the sum of $266.17 as damages and $62.44 interest, making in all the sum of $327.61, the award for this lot being made on the basis of the owner of parcel damage No. 3 having access over the same to the stream.” After the commissioners had tiled their report, the appellant, intermediate the making and the hearing of a motion to confirm, the same, made a motion to vacate the proceedings so far as the same related to said parcels Nos. 2 and 3, and both motions were made together. Upon the hearings of the motions an order was made denying the appellant’s application and confirming the report of the commissioners and from which this appeal is taken.

We are of the opinion that the order is right, except in one respect, and that' is as to the amount of damages awarded for parcel No. 3. The evidence, inasmuch as a question was raised as to the appellant’s title, was' sufficient to justify the commissioners (under section 989 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chapter 660, Laws of 1893) in making the award to unknown owners. This section provides that: “ In all and each and every case and cases, where the owners and parties interested, or their respective estates and interests, are unknown, or not fully known to the said commissioners, it shall be sufficient for them to estimate and assess and to set forth and state in their said report, in general terms, the respective sums to be allowed and paid to, or by the owners and proprietors generally, * * * without specifying the names of the estate or interests of such owners and proprietors and parties interested or of any or either of them.”

The damages, however, it seems to us, are inadequate, in view of the evidence taken. The commissioners awarded for the damages sustained by the owners of parcel No. 3, as hereinbefore stated, $4,920.75. The record shows that the wharf upon this parcel, as originally constructed, cost $2,500 ; that in 1886 repairs were made thereto which cost upwards of $3,000, and' in 1894 further repairs were made which cost over $800, showing the amount expended upon the wharf alone to have been something more than $6,000. The witness Edwards, a contractor*, testified that it would now actually cost, to construct the stone work and filling in and about the wharf, over $6,000, and that it was at the present time worth that sum. This testimony was not contradicted by the city. It also appeared, and the fact was not contradicted, that the amount, collected by the respondent for wharfage had increased from year to year from 1884 until the land was taken by the city, and that in the year 1895 $935.75 was received, and in 1896 $1,083.37; that the net income in 1895 was $764.75. As to the value of this parcel, the appellant’s witness Berrian testified that the same was worth at least $6,562.50, and the city’s witness Tarbox testified that the same was worth $5,250, exclusive of the wharf and structure erected thereon, and yet, notwithstanding the testimony of these witnesses, together with the testimony as to the improvements placed upon the lots, the commissioners only awarded $4,920.75 for the value. Upon what that award could have been based it is difficult to determine. There certainly is nothing in this record which justifies it. If we adopt the estimate given by the city’s expert, the award made is less than the amount which he testified that the lot was worth, exclusive of the value of the improvements. The city can only take parcel No. 3 by paying to the true owner thereof the full compensation therefor. Such compensation, manifestly, must be determined in the same way and by the same methods that the value of other lands is ascertained when taken for a public use, viz., by its location, the improvements made thereon and its present prospective earning capacity, in view of the use to which it may be put.

We are of the opinion that the commissioners failed to take these facts into consideration or to give effect to the evidence. The cost of the improvements, of course, is not to finally fix or determine the amount to be. awarded, but only to be considered with the other evidence offered, bearing upon-and fixing the value.

We are of the opinion, therefore, that the order appealed from, in so far as the same relates to the amount awarded for parcel No. 3, should be reversed, with costs, and the matter remitted to the commissioners for further action bearing upon that subject.

Van Brunt, P. J., Patterson and Laughlin, JJ., concurred.

Order reversed, with costs, and the matter remitted to the commissioners for further action.  