
    In re BOARD OF WATER SUPPLY OF CITY OF NEW YORK.
    (Supreme Court, Special Term, Rockland County.
    June 2, 1910.)
    1. Eminent Domain (§ 234)—Commissioners of Appraisal—Report.
    Laws 1905, c. 724, § 14, provides that a report by the commissioners of appraisal in condemnation proceedings by a city shall be filed not more than one year after the filing of the oaths of the commissioners. . Section 19 provides that every person in any way interested in any real estate taken, if he intends to claim compensation for such taking, shall within three years after the appointment of the commissioners, exhibit to them a statement of his claim, and shall thereupon be entitled to offer testimony as to such claim and the proper compensation to be made him, and to have a determination made by such commissioners as to his compensation. Held, that the provision of section 14, limiting the time within which to report, is directory, and that the statutory limitation of the time spent by the commissioners will be waived by the owners of property voluntarily appearing before the commissioners and taking part in the proceedings.
    [Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 592-600; Dec. Dig. § 234.*]
    2. Eminent Domain (§ 228*)—Commissioners of Appraisal—Grounds of Removal.
    Under a statute providing that a court may at any time remove any of the commissioners of appraisal appointed in proceedings by a city to condemn property, when the court shall deem the commissioner incapable of serving or an unfit person to serve as such commissioner, commissioners should not be removed for an honest error of judgment in the admission of evidence or the adoption of an erroneous theory in the proceedings, nor because the time consumed in the proceedings is too long, particularly where proceedings for their removal are begun when their work is practically over.
    [Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 582; Dec. Dig. § 228.*]
    In the matter of the' application of the Board of Water Supply of the City of New York to acquire certain real estate. On application to remove the commissioners of appraisal.
    Application denied.
    Archibald R. Watson, Corp. Counsel, for the City.
    Barrett & Buckbee, for commissioners.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907-1 to date, & Rep’r Indexes
    
   TOMPKINS, J.

Application is made to the court for the removal of the commissioners of appraisal in the above-entitled proceedings, known as “Hill View Reservoir, Section No. 1.” The grounds of the application are: First. That the commissioners have not filed their report within one year and eight months from the filing of their oaths of office, and that the time within which to complete their work has at no time been extended. Second. That by refusing to follow the opinions of the court, and the legal rules and principles applicable to this proceeding, they have held and are holding unnecessary sessions and delaying the final determination of these proceedings, to the great and unnecessary damage and expense to the city of New York and the claimants herein. Third. That their actions, decisions, and attitude with reference to the claims represented by Joseph A. Flannery, Esq., as attorney, are unfair, partial, and prejudicial to the city of New York and,other claimants herein. Fourth. That said commissioners have refused to obey the instructions of the court, and exhibit in their conduct, speech, and proceedings a reckless disregard and contempt for said court.

Section 14 of chapter 724 of the Laws of 1905, which is the act under which these proceedings were taken, provides as follows:

“Said report, signed by said commissioners or a majority of them, shall be filed not more than one year after the date of the filing of the oaths of the commissioners, in the office of a clerk of a county in which the real estate sought to be acquired may be situated, and in case a part of the real estate is in another county, a duplicate report or certified copy shall be filed in the office of the clerk of such other county, provided however, that the Supreme Court upon application and good reasons shown therefor, may extend the time for the filing of said report 'beyond one year for a period not exceeding eight months.”

Section 19 of the same act should be read in connection with section 14, and it provides as follows:

“Every owner or person in any way interested in any real estate taken or entered upon and used and occupied for the purposes contemplated by this act, and any owner or person interested in real estate contiguous thereto, and which may be affected by the construction and maintenance of said aqueducts, dams, reservoirs, sluices, canals, culverts, pumping works, bridges, tunnels, blow-offs, ventilating shafts and appurtenances, whether such contiguous real estate is shown on the maps or net, if he intends to make claim for compensation for such taking, entering upon, using or occupying, shall within three years after the appointment of the commissioners of appraisal, exhibit to the said commissioners a statement of his claim, and shall thereupon be entitled to offer testimony and to be heard before them touching such claim and the compensation proper to be made him, and to have a determination made by such commissioners of appraisal as to the amount of such compensation. Every person neglecting or refusing to present such claim within said time, shall be deemed to have surrendered his title or interest in such real estate, or his claim to damages thereto except so far as he may be entitled as such owner or person interested to the whole or a part of the sum of money awarded by the commissioners of appraisal as a just and equitable compensation for taking, using, and occupying, or as damages for affecting the real estate owned by said person, or in which said person is interested.”

These commissioners were appointed on May 4, 1907, and took and filed their oaths of office on the 20th day of May, 1907, and immediately thereafter began their work. There were 56 parcels of land included in this proceeding, and the commissioners from time to time filed three separate reports, including about 40 of the said 56 parcels, and after making their third separate report took up parcels known on this motion as Nos. 1 and 3, which, however, appeared on the map as one parcel. The commissioners tried these two parcels on the theory that there were 16 separate lots or plots in parcel No. 1, and 41 separate lots or plots in parcel No. 3, and made awards upon such lands known as parcels Nos. 1 and 3, by a report which was set aside by this court, by an order dated January 18, 1909, upon the ground that the commissioners had adopted an erroneous theory in receiving evidence and making their awards upon a lot basis, instead of upon the tracts as a whole. They then proceeded with parcel No. 5 on said map, and allowed that to be divided into 127 lots, and took testimony separately on each of said lots, and made an award, which was also set aside on the ground that the property was not immediately available and marketable as building lots, and that the commissioners had adopted a wrong theory. They then proceeded with the tract of land described upon said map as-parcel No. 4, belonging to King, and consisting1 of 50-odd acres.

This property has been on trial now since June, 1909, and practically all of the meetings held by the commissioners since then have been devoted to the hearing of testimony relating to this property, which for the purposes of the trial before1 the commissioners was divided into 1,100 25-foot lots or separate parcels. About 65 sessions have been held by the commissioners upon this one tract alone, and about 4,000' printed pages of testimony taken. Six witnesses called by the claimants were permitted to testify day after day in reference to each one of the so-called 1,100 lots into which this tract had been divided by a map prepared for the owner. On the hearing of this motion it was conceded that the hearings upon this property were practically closed, and that only one or possibly two more hearings would be necessary before the commissioners would be prepared to make and file their report thereon. The remaining 12 parcels upon the map in this proceeding which have ■ not been tried are small parcels and of little value. In one of them the owner cannot be found, and some are old roadways; so that the work of this commission will be practically over if it makes a report upon parcel No. 4.

As to the first ground upon which the removal of these commissioners is asked, it is my opinion that the provision of section 14 hereinbefore quoted, which limits the time within which commissioners shall make final report of their proceedings, is directory, rather than mandatory. Such an intention by the Legislature seems to me apparent from the provisions of section 19 of the same act, which gives property owners and claimants three years within which to present their claims-to the commissioners. However, the statutory limitation upon the time of the commissioners can undoubtedly be waived by the parties to the proceedings, and in this case it appears that the petitioners, represented by the corporation counsel, and the owner of parcel No. 4, which is the one parcel that has been before the commissioners during the last year, have voluntarily appeared before the commissioners from time to time and produced, examined, and cross-examined witnesses, and generally acquiesced and taken part in the proceedings, and consented to the hearings being held down to the time that the order to show cause was procured on this motion. It is my opinion that all who have thus voluntarily appeared before the commissioners and taken part in the proceedings, including the corporation counsel, must be deemed to have waived the statutory provision as to time.

The second question is whether these commissioners should be removed on the ground that they are unfit to serve as commissioners. The statute says:

“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.”

Under this provision of the statute the court undoubtedly has power to remove any commissioner, who in its judgment is unfit for any reason to longer serve as a commissioner, and it is not necessary that it should be proven that the commissioner has acted in bad faith, or been prompted by a dishonest motive. Unfitness may exist from a variety „of causes, not necessarily involving moral turpitude; but still facts must be shown from which the court, in the exercise of its judgment, can clearly determine that the commissioner is for one reason or another, or for several reasons, unfit to serve. The reasons given by the petitioner for the charge of unfitness, briefly stated, are these: That they have willfully disregarded the decisions of the court in reference to parcels Nos. 1, 3, and 5; that they have been grossly dilatory in the proceedings respecting parcel No. 4, and have held an unnecessary number of unreasonably short sessions respecting parcel No. 4, and have exhibited unfair partiality to Joseph A. Flannery, the attorney for parcel No. 4.

The claifn is made on behalf of the commissioners, and it is not denied, that all of the claimant’s testimony relating to parcel No. 5 had been taken before the court’s decision was rendered setting aside the report as to parcels Nos. 1 and 3, and that three witnesses for the claimants had been fully examined in chief, and one partially examined, respecting parcel No. 4, before the court’s decision setting aside the report of the commissioners as to parcel No. 5 was handed down; and the further claim is made on the part of these commissioners that the property included in parcel No. 5 was of a different character from that included in parcels Nos. 1 and 3, and that parcel No. 4, which is now on trial, differs in some respects from parcels Nos. 1, 3, and 5, and that they would have been justified, even had the court’s decisions been before them when they began the trial of parcel No. 4, in disregarding those decisions as inapplicable to parcel No. 4. These are all matters more or less for the judgment and discretion of the commissioners, and the court can hardly say, before the coming in of the report of the commissioners upon parcel No. 4, whether the rules of law laid down by the court for parcels Nos. 1, 3, and 5 ought to be made to apply to parcel No. 4 or not; and it seems to me that the court should not on this motion determine the propriety of the rulings of the commissioners as to the evidence respecting parcel No. 4, or determine whether allowance should be made by the commissioners for lot values, or for the 50-odd acres in tract No. 4 as one parcel.

These are primarily questions for the commissioners, subject to review by the court on the coming in of the commissioners’ report, and the court should not prejudge the rights of the owners or usurp the functions of the commissioners. Of'course, if it appeared that the commissioners had acted in bad faith, or were prompted by dishonest or improper motives, the court would not hesitate to remove them; but the facts before me on this motion do not justify a finding of bad faith or improper motives on the part of the commissioners in respect to their rulings upon the admission of evidence, or the adoption of a theory for the determination of the claimants’ damages. In other words, for an honest error of judgment in the admission of evidence, or the adoption of an erroneous theory, they should not be removed from office; and these are all matters that may be considered by the court upon the coming in of their report. If they have adopted a wrong theory, or admitted improper and prejudicial evidence, the city will have its remedy in this court when the report of the commissioners comes before it.

The time consumed by these commissioners in hearing this testimony relating to parcel No. 4 is a matter to be considered on the question of their compensation; that there have been many unnecessary hearings, and that they have been unreasonably brief, and that the proceeding has dragged out over an unnecessary and unreasonable length of time, is very apparent to me. That 65 hearings on as many days should be devoted to this one p'arcel No. 4, consisting of a tract of 50-odd acres of land, is simply preposterous. Even though the commissioners were justified in allowing the claimants to prove the value of each of the 1,100 25-foot lots, it could have been done in a day or two, or four or five days at the longest. Instead of that, each of the five or six witnesses for the claimants was permitted to take up and describe and compare with other lots, and fix a separate value upon, each one of the 1,100 lots. The proper way of proving the value of the 25-foot lots, if it was desirable to show the value of each, was to fix the value of each on so many lots; that is to say, that 100 lots were worth so much each, and 200 lots were worth so much each, and so on, instead of taking up and considering and describing each lot separately, and comparing it with other lots.

All of the testimony for the claimants and the city, respecting this parcel No. 4, could have been put in in 5 days at the longest, instead of 65, and this is a matter that should have serious consideration when these commissioners come before the court for the fixing of their compensation ; but it does not seem to me sufficient to justify a finding by the court that they are unfit to longer serve', and their removal from office, especially in view of the fact that their work is practically over and that they are about ready to make a report. These unreasonable delays and unnecessary sessions are also matters to be taken into consideration by the court in fixing the compensation to be allowed the claimants’ witnesses.

I do not find that the charge against the commissioners that they have been partial to Mr. Elannery, the claimants’ attorney, and unfair and prejudicial to the city, sustained by the proofs before me. They have undoubtedly given Mr. Flannery every opportunity to try his case in his own way, and according to his theory of the manner in which it should be presented and decided; but the facts would not justify me in deciding that they had been intentionally and willfully unfair to the corporation counsel, or unduly partial in their treatment of Mr. Flannery. So much time has been consumed .by these commissioners, and so little of their work remains to be done, that it would be much more costly to the city to take these proceedings de novo before a new commission. Besides, it might work an injustice and hardship to the owner of parcel No. 4, should he be required to try his case all over again.

Upon all of the facts before me, my conclusions are: First, that the commissioners should not be removed on the ground that they are unfit to serve as such commissioners; second, that as to parcel No. 4, in which both parties have voluntarily appeared and given testimony, the court should not remove the commissioners, because of the lapse of more than one year and eight months since the filing of their oaths of office.

As to the power and duty of the court respecting the parcels concerning which no proceedings have been had, since the expiration of the one year and eight months period, I will hear counsel upon the settlement of the order to be made hereon, at which time I will also determine within what limit of time the present commission shall conclude its work.  