
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title, etc., to the Lands, etc., Required for the Opening and Extending of the Addition to Crotona Park, Laid Out upon the Map of The City of New York on June 29,1906, and Bounded on the North and West by Crotona Park, on the South by Crotona Park East, and on the East by the Southern Boulevard, in the Twenty-fourth Ward, Borough of the Bronx, City of New York. Mary F. McQueeney and Others, Respondents.
    First Department,
    February 3, 1911.
    Eminent domain — review of report of commissioners — evidence — exception by party not appealing from determination— value of other parcels similarly situated—offers of purchase — consideration of matters dehors the record — pres'ent value — when no laches in moving for confirmation.
    The court will not disturb the determination of commissioners in condemnation proceedings for mere errors in the admission or exclusion of evidence unless ■ they have proceeded upon a wrong theory to the prejudice of one of the parties. As commissioners view the premises, they may take into consideration the knowledge thus acquired in connection with the oral evidence produced before them.
    An exception taken by the owner of one parcel of lands condemned to the exclusion of evidence as to value is not available to the owner of another parcel who did not call the witness although the testimony related to the price paid for his lands.
    And, in any event, a party may not establish the value of his lands by showing what was paid for another parcel similarly situated.
    The owner of lands cannot - establish their value by testimony that he received certain offers for the property.
    The Special Term in.reviewing awards made by commissioners on the condemnation of lands should not take into consideration a fact dehors the record before the commissioners; as, for example, the detrimental effect of a local power plant which had since been destroyed by fire, but which had been rebuilt so as to be’in full operation. __
    Although the commissioners in condemnation proceedings began to take testimony in 1908, if they certified that the value as found by them is that of the date of their report in 1909, it should not be sent back for further testimony as to the present value merely because the motion to confirm is delayed for three weeks after the date of the report, or because some time elapsed between the taking of formal evidence and the date of-the report. • " -
    Appeal by the petitioner,.The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the. county of New York on the 8th day of March, 1910, as amended nxmc pro tunc by an order entered in said clerk’s office on the lltli day of October, 1910, denying the petitioner’s motion to confirm the report of commissioners of estimate in part' and referring the matter back for further proof.
    
      Joel J. Squier of counsel [John J. Kearney with him on the brief], Archibald R. Watson, Corporation Counsel, for the appellant, The City of New York.
    
      Benjamin Trapnell of counsel [Joseph A. Flannery, attorney], for the respondents William Simpson and others.
    
      Royal E. T. Riggs of counsel [Gannon, Seibert & Riggs, attorneys], for the respondent Mary F. McQueeney.
    
      Leo C. Dessar, for the respondent Mary A. Curtis.
   Clarke, J.:

, This proceeding was instituted to condemn property lying between Crotona park and the Southern boulevard' in the borough of the .Bronx, for the purpose of making an addition to said park. The property was vacant, with the exception of one plot marked 3 on the damage map, upon which stood a partly burned frame building, and plot 9, fronting on the Boulevard, on which stood a two and one-half story frame dwelling house. ■

The final report of the commissioners was dated October 13, 1909, and contained the statement that the sums of. money awarded by us for the damage sustained by reason of this proceeding are estimated as of the date of this our report.”

The report was presented for confirmation to the Special Term on November 4, 1909. That court made an amended order, bearing date March 7, 1910, as amended nunc pro tuno by an order dated October 10, 1910, entered and filed in the office of the clerk of the county of New York on October 11, 1910. By that order the awards made for damage parcels Nos. 7, 10 and 11 were confirmed. The objections to the confirmation of the awards as to damage parcels Nos. 1, 2, 3, 5, 6, 8, 12, 13,14, 15, 16, 17, 18 and 21 were sustained and the report returned to the commissioners of estimate to take further proof as to such parcels. From so much of that order the city appeals.

In Matter of City of New York [Blackwell's Island Bridge) (198 N. Y. 84) Werner, J., said: “ It is the well-established rule that courts of review will not disturb the determination of commissioners in condemnation proceedings for mere errors in the admission or exclusion of evidence, unless the commissioners have proceeded upon a wrong theory to the ¡prejudice of one of the parties. The commissioners view the premises, and in coming to a conclusion as to value they may take into consideration the knowl edge thus acquired in connection with the oral evidence produced before them.”

The errors assigned as justifying the action of the Special Term in'refusing to confirm are / First. The exclusion of evidence offered by the respondent Simpson to show the actual purchase price j^aid by him .for the property in the year 1905, two years before the institution of this proceeding. There was no such evidence offered by or in behalf of the respondent Simpson. A witness, a real estate broker, -was called and examined by the attorney of Mr. Burke, the owner of damage parcels 13 and 14, and in the course of his examination to establish the value of those parcels he was asked as to the price paid by Simpson for other parcels, and upon objection by the city the evidence was excluded. That exception was for the benefit of Burke, but Burke is not complaining and is not before the court as a respondent here. He settled with the city and sold his two lots to it for a slight increase over the amount returned by the commissioners as his damage.

If Burke were a party and pressing the exception, he would be met by. the rule laid down by Parker, J., in Matter of Thompson (127 N. Y. 463) : “But a party may not establish the value of his land by showingwhat was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them, that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken.”

Second. The exclusion of proof of bona fide offers of purcliaée made to the owner. There was no such exclusion. The same witness alluded to in the foregoing' paragraph, being examined in behalf of Burke, was asked: “ Have you received since the purchase by Mr. Simpson at this time, February, 1905, of these 4 lots bona fide offers to him for these 4 lots ? ” This was objected to, the objection overruled, and he answered: “ 1 have. I have had two, one in March, 1905, and the other August, 1906.” He was not asked the amount of those offers. If- he had been and the question had been ruled out and excepted to, the exception would not have benefited any respondent before the court, and the evidence would have been properly ruled out.

In Hine v. Manhattan Railway Co. (132 N. Y. 477) the court said : “ Part of the evidence introduced for that purpose consisted of his own testimony, to the effect that he had received certain offers for the property. We agree with the General Term that the court erred in receiving it.” ■ '

Third. The Special Term took‘cognizance of a fact dehors the record before the commissioners, stating hr its opinion: “.The evidence of value before the commissioners took into consideration the detrimental effect of a local power plant, which lias' since been destroyed by fire.” 'That the court erred in taking in to consideration such a- matter is demonstrated by the fact presented to this court, also dehors the record before, the commissioners, that the said power plant has been rebuilt and is in full force and operation.

Fourth. That the delay between the time of the taking of the testimony and -the presentation of the report for confirmation was such as to require the report to be sent back for the- taking of further testimony .as to present value. There was no such delay between the date of the final report, the 13th of October, 1909, and the coming on of the motion to confirm on November fourth. It is true that evidence was taken in the year 1908, but it is also true that evidence was taken in 1909, and the commissioners have certified, that their estimate of value was as of the date of their report The property in question was unimproved and undeveloped, situated on the side of a hill, one of. the adjacent streets having a very steep grade of at least ten per cent, part of the property covered with rock. As has been many times pointed out, the commissioners were required to view the property and were entitled to make use of their own knowledge, coupled with the evidence taken before them, in reaching’ theii conclusions. ■

It would be a most dangerous rule to establish, and one calculated to cause inextricable confusion and uncertainty in such proceedings, if no attention were to be paid to the certificate of the commissioners, under their oath of office, that the value found by them was as of the date of their report, and to reject such report simply because some time had elapsed between the date thereof and the taking of formal evidence.

We do not find that the commissioners proceeded upon any erroneous theory or that such errors were committed in the reception and exclusion of evidence as would require a refusal to confirm the report. When we come to examine the amount of the awards we find no reason to interfere with them. We have examined the entire record with care, and, considering the character of the property, the nature of the proceedings, the power of the .commissioners and the evidence itself, it seems to us that their findings are justified. W e are supported in this by the fact that three of the owners accepted the report and it was confirmed as to them, and that another owner of two damage parcels has, pending the proceeding, settled with the city by accepting a very slight increase over the amount awarded.

It follows, therefore, that so much of the order appealed from as refused to confirm the report and referred it back to the commissioners for further proof should be reversed, with ten dollars costs and disbursements to the appellant, and the motion to confirm the report granted.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Order reversed to the extent stated in opinion, with ten dollars costs, and disbursements, and motion granted. Settle order on notice.  