
    The New York Central and Hudson River Railroad Company, Appellant, v. Priscilla Mills and Others, Substituted for Abner B. Mills and Others, Respondents, Impleaded with Eleanor Reynolds and Others, Defendants.
    Second Department,
    December 13, 1913.
    Eminent domain — questions considered by commissioners of appraisal — valuation of lands condemned by railroad company.
    Although commissioners of appraisal in condemnation proceedings may regard any use for which the property is advantageously adapted, and even a special value of the party condemning by reason of some intrinsic quality in the property itself, the real question is what has the owner lost and not what has the party acquiring the property gained. The mere fact that land about to be condemned by a railroad company is within the lines of its road does not give it additional value. Its condition and situation are to be considered at the time it is taken and not as enhanced by the purpose for which it is taken.
    Award of commissioners of appraisal examined, and held, not to be inadequate.
    Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, 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 1st day of October, 1913, setting aside the report of commissioners of appraisal in condemnation proceedings and appointing new commissioners.
    
      George H. Walker [Alexander S. Lyman with him on the brief], for the appellant.
    
      Jeremiah D. Toomey [Michael J. Tierney with him on the brief], for the respondents.
   Putnam, J.:

The land sought to be acquired for a railroad station has a frontage of about 40 feet on the west side of West street, Mount Vernon, a depth of 115 feet, with an area of 4,840 square feet.

The commissioners of appraisal awarded $8,500. In pursuance of an order (affirmed by this court, 157 App. Div. 932) the commissioners filed a further and supplemental report stating the grounds of their decision. Thereafter, the court at Special Term granted the motion of the defendants to vacate and set aside the award on the grounds that it was insufficient and that the commissioners had adopted an erroneous principle.

The supplemental report does not show that the commissioners proceeded on a wrong theory, and the testimony does not indicate that the sum awarded was inadequate. While the commissioners may regard any use for which the property is advantageously adapted, and even a special value to the party condemning, if by reason of some intrinsic quality in the property itself, the real question is, What has the owner lost, not what has the taker gained.

Defendants’ experts erroneously estimated a value, not upon the property itself nor on the market as shown by sales in the vicinity, but principally upon its use as a railroad station, or as if it were land adjoining such a railroad station. But there was no evidence that this property was specially adapted for these purposes. The mere fact that it is within the fines of location of the railroad does not give it additional value. Its condition and situation are to be considered at the time it is taken, and not as enhanced by the purpose for which it is taken. (Matter of New York, Westchester & Boston R. Co., 151 App. Div. 50; Matter of Simmons [Ashokan Reservoir, Sec. No. 7], 130 id. 356; 195 N. Y. 573; sub nom. McGovern v. New York, 229 U. S. 363.)

Leaving out of consideration the purpose for which plaintiff seeks this land, the testimony indicated about $4,100 as value of the land itself, with $3,500 for the buildings. Hence, the commissioners’ award of $8,500 was not inadequate.

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

Jenks, P. J., Thomas, Eioh and Stapleton, JJ., concurred.

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