
    The New York Central and Hudson River Railroad Company, Appellant, v. Thomas Newbold and Others, Respondents.
    Second Department.
    January 22, 1915.
    Eminent domain — award in condemnation proceedings — testimony of experts not conclusive — measure of damages—damage to portion not taken — trial — harmless error — appeal—competency of expert witnesses.
    In awarding damages in condemnation proceedings the commissioners are not restricted to a choice between the estimates of warring experts and are in no sense bound by their opinions. The commissioners must consider the evidence, but may exercise their own judgment, and their conclusions, especially when formed after a view of the premises, will not be disturbed on appeal, unless they appear to be unjust, because they disregarded all the evidence, or erred in their theory of the award.
    Award made on condemnation proceedings examined and affirmed.
    Where a strip of land along a bluff overlooking railroad tracks is condemned for railroad purposes, the owner may, on the question of damages, give evidence as to the^ cost of reconstructing certain buildings on the land not taken, the percentage of their depreciation and their present value. For the purpose of assessing damages the part taken and the part not taken must be regarded as one tract and just compensation includes damages to the portion not taken.
    In any event, an award will not be overruled for error in admitting such evidence where there is other evidence sufficient to sustain it.
    The Appellate Division will not pass upon rulings as to the competency of expert witnesses, the question of qualification being for the trial court.
    Putnam, J., dissented in part, with memorandum.
    Appeal by the plaintiff, The New York Central and Hudson Eiver Eailroad Company, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 31st day of March, 1914.
    
      Robert Wilkinson, for the appellant.
    
      John E. Mack [John Hackett with him on the brief], for the respondents.
   Jenks, P. J.:

The plaintiff appeals from the final order in condemnation proceedings of defendants’ land for railroad purposes, that confirms an award of $9,260. The land taken extends along the entire east boundary of the defendants’ land. It consists of a narrow strip whose greatest width is 97 feet, and it comprises about 1 acre. It is situate about 83 feet above the plaintiff’s track and faces the Hudson river. The land of the defendants including this strip is square and contains 20 acres. The entire tract seems to be devoted to residential purposes. It is not extensive enough to be called an estate, but rather the grounds of a country house. In addition to the house itself, there are two cottages, a coachhouse, a greenhouse, sheds and hot beds, an icehouse, a water tower and appropriate apparatus, pumphouse, ram, etc., and an outhouse. None of these is situate on the land taken. But there is thereon a small summer house, and there is therein a running spring which the proof shows is impossible of relocation. There is evidence that the property has an individual water system from springs on the property. There is proof that this particular spring was valuable, and available for pasture purposes. The plaintiff met this with proof as to the deleterious condition of the waters thereof.

There was a clash of rival experts, not an unusual feature in such proceedings. Assuming that the theory of damages acted upon was correct, if the commissioners had adopted the figures of the plaintiff’s experts they would have awarded much less; if the figures of the defendants’ experts, much more. But it is perfectly well settled that the commissioners are not restricted to a choice between the estimates of warring experts, and are in no sense bound by their opinions. (Matter of Town of Guilford, 85 App. Div. 207, and cases cited.) Each side in such controversies is prone to retain witnesses most favorable to it, and very often such testimony is but lay advocacy under the guise of evidence. The commissioners, of course, are to consider the evidence, but in exercise of their own judgment. And their conclusion, especially when formed after view of the premises (Matter of New York Elev. R. R. Co., 35 N. Y. St. Repr. 944; Matter of Manhattan R. Co. v. Comstock, 74 App. Div. 342), is not to be disturbed unless they appear to have done injustice by overlook or disregard of all of the evidence before them, or, of course, unless it appear that they have erred in their theory of the award. (Matter of City of New York, 198 N. Y. 84, 91.) Every intendment is in favor of the report. (Matter of Manhattan R. Co. v. Comstock, supra, 342, and cases cited; Matter of Mayor, etc., 99 N. Y. 569; Matter of Bensel, Southern Aqueduct, Secs. 15 & 17,152 App. Div. 500.) I see no reason to disturb the amount of the award.

It is contended that Matter of City of New York {supra) is not authority for the admission of the testimony of certain workmen as to the cost of reconstruction of the said buildings, the percentage of their depreciation and their present value, for the reason that the structures (save the summer house) were not situate on the property actually taken. But I think that the realty in question, including the strip taken, must be regarded as one tract, and that the case last cited is authority for the admission of this kind of evidence. (See, too, Lewis Em. Dom. [3d ed.] 1312.) For just compensation includes damages to the remainder of the tract. (Newman v. M. E. R. Co., 118 N. Y. 618; South Buffalo R. Co. v. Kirkover, 176 id. 301; Matter of Board of Public Improvements, 99 App. Div. 576; People ex rel. City of N. Y. v. Lyon, 114 id. 583; affd., 186 Y. Y. 545.) If I am wrong in this view the ruling would not be reversible error (Matter of City of New York, supra, 91), for the other evidence is sufficient to sustain the award.

I am of opinion that we should not pass upon the rulings as to the competency of the defendants’ expert witnesses.' The question of their qualification was for the trial court, and its ruling is not reviewable if the proof as to their qualification presented a fair matter for its judgment. (Stillwell Mfg. Co. v. Phelps, 130 U. S. 520; Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56; Lawson Expert Testimony [2d ed.], 468.)

I advise affirmance, with costs.

Burr, Thomas and Rich, JJ., concurred; Putnam, J., concurred in separate memorandum.

Putnam^ J. (concurring):

I think the cost of rebuilding structures away from the land taken, and the figures of the estimated depreciation of such buildings, were incompetent. I concur in the result because I think the award is otherwise sustained.

Final order affirmed, with costs.  