
    In the Matter of the Petition of Hubert O. Thompson, Commissioner of Public Works of the City of New York, for the Appointment of Commissioners of Appraisal under Chapter 490 of the Laws of 1883. Case of Clinton W. Sweet.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    1. Eminent domain—Commissioners for appraisal—Report of—When SAME MAY BE SET ASIDE.
    The court will not be justified in setting aside an award unless the inadequacy is gross or the commissioners have erred in the legal principle upon which they have acted.
    2. Same—Consequential damaoes not allowed.
    Commissioners appointed to appraise the value of the land to be taken have no power to allow for damages in the nature of trespass. These,-if suffered through negligence, may be recovered in a separate action.
   Cullen, J.

—The award made to the land-owner in this case seems inadequate, but as usual in this class of cases the testimony as to values is very conflicting. The difficulty of reviewing the action of commissioners to condemn land who act upon not only the evidence' adduced before them but also on their own knowledge and personal examination is so great that the court would not be justified in setting aside an award unless the inadequacy is gross or the commissioners have erred in the legal principles upon which they have acted. Matter of William and Anthony Streets, 19 Wend., 694; South Seventh Street, 48 Barb., 16.

The claim for damages for the construction by the contractors of a roadway over the appellant’s property was properly disallowed. Matter of Thompson, 43 Hun, 416. The construction of the road outside of the lands sought to be acquired was a simple trespass, for which the appellant may recover in action against the proper parties.

But there was a further claim for damages made that was for injury done the appellant’s dwelling from shocks caused by blasting. The statute authorizing the construction of the aqueduct provides for compensation for such injuries. The fact of the damage does not seem to have been ■controverted. It was left to the commissioners to determine upon inspection and without evidence the amount of the damage, but they seem to have made no award for it. The damages sought to be recovered differ in their character from those occasioned by the construction of the temporary road. No trespass is committed for the blasted rock was not cast upon the appellant’s land. They are strictly consequential. We think no separate action could be maintained to recover them in the absence of proof of negligence, because it will be presumed that in this proceeding the land-owner recovered for all injuries occasioned by the proper prosecution of the work. Bellinger v. New York Central R. R., 23 N. Y., 42; Rood v. N. Y. and Erie R. R., 18 Barb., 80.

The amount of this claim is small, but for the error in failing to make an award for it we think that the appraisal should be set aside.

Order and appraisal appealed from reversed with costs and new appraisal before other commissioners to be appointed at special term ordered.  