
    In the Matter of the Application of The Kings County Elevated Railroad Company to acquire land. In re Joseph Bryan.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Eminent domain—Damages—Report.
    In proceedings by a railroad to acquire land, the commissioners appraised the damages to respondent’s land, but, at the request of the railroad, certified in their report that in doing so they made no allowance or deduction for any real or supposed benefits to the land. Held, that the special term had power to send back the report to the commissioners to consider and pass on the question of benefit, and properly exercised its discretion in so directing.
    Appeal from order recommitting report to commissioners.
    In proceedings by the railway company to acquire title to the • property of Bryan, the commissioners reported that he was entitled to $5,000, and that in determining the amount of such compensation they made no allowance or deduction on account of any Teal or supposed benefits which parties in interest may derive from the construction of the railroad. This report was confirmed March 15, 1890. Subsequently, on June 30th, the court made an order, on motion ,of the property owner, recommitting the report to the commissioners with directions that they shall state therein whether any benefits have accrued from the railroad to the property, and, if any, the amount thereof, and whether or not such benefits have been deducted in estimating the damages at $5,000, and from this order the railway company appeals.
    
      Leslie W. Russell and Welton Percy, for app’lt; Smith, Wood-ward & Buckley (Chas. J. Patterson, of counsel), for resp’t.
   Pratt, J.

Commissioners were regularly appointed and made their report, which was confirmed.

In their report the commissioners certified as follows, to wit, “ In determining the amount of such compensations, we made no allowance or deduction on account of any real or supposed bene- ■ fits which the parties in interest may derive from the construction of the road.”

Although this clause was inserted in the report at the instance of the counsel for the railroad, an appeal has been taken by the railroad company, and it may be possible that it was error on the part of the commissioners not to determine and take into account in assessing the damages any supposed benefits that might accrue ■to the owner of the lands from building the road, although it would seem that if upon the hearing the railroad company made no •claim for benefits, it ought not to be regarded as error if the commissioners failed to consider that question.

It is but just, however, to both parties that the report should be sent back in order that the commissioners may consider and pass upon this question, and if necessary amend their report The power of the court at special term to make such an order cannot be questioned. Matter of N. Y. C. & H. R. R. R, 64 N. Y., 60; also In Matter of N. Y., L. & W. R. R., 29 Hun, 602, affirmed 93 N. Y., 385.

We think the discretion was properly exercised by the court at special term in making the order appealed from, and it must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  