
    Matter of the Application of the Public Service Commission for the First District of the State of New York Acting for and on Behalf of the City of New York, by the Corporation Counsel of the City of New York, for the Appointment of Commissioners of Appraisal Pursuant to Chapter 4, of the Laws of 1891, and the Several Statutes Amendatory Thereof and Supplemental Thereto, Relative to Acquiring an Estate in Fee Simple Absolute in and to Certain Premises Situated on the Northerly Side of East Forty-second Street Between First Avenue and Avenue A, in the Borough of Manhattan, City of New York, Required for the Purpose of the Construction, Maintenance and Operation in Perpetuity of a Rapid Transit Railroad.
    (Supreme Court, New York Speeial Term,
    November, 1915.)
    Condemnation proceedings — when court will not interfere with report of commissioners of appraisal — limitation of landowner — evidence.
    The court will not interfere with'the report of commissioners of appraisal in condemnation proceedings unless it appears that some erroneous principle has been adopted, or it is clearly shown that the awards are either inadequate or excessive, or that the commissioners have been influenced by passion or prejudice.
    The rule is well established in this state that the owner of land taken in condemnation proceedings is to receive the full value of the land taken, not its value to him or to the person or corporation seeking to acquire it, but the market value of the property as between one who wants to purchase and one who wants to sell.
    While the landowner is not limited in compensation to the condition in which the property is at the time, or to the use which he makes of it, he is entitled to receive its market value for any purpose to which in the judgment of the commissioners it is adapted; he is, however, not entitled to be paid more merely because the land is peculiarly adapted to the use to which it is intended to be applied, and the fact that the land will be used for a reservoir rather than a farm or any other lawful .business forms no material out of which an award is to be made; the commissioners committed no error therefore in excluding testimony tending to show the. availability of the landowner’s property for particular purposes.
    Motion to confirm the report of commissioners of appraisal.
    Lamar Hardy, corporation counsel, for petitioner.
    ■Shearman &■ Sterling, for New Amsterdam Gas Company.
   Newburger, J.

It is well settled that the court will not interfere with the report of commissioners of appraisal unless it appears that some erroneous principle has been adopted, or it is clearly shown that the awards are either inadequate or excessive, or that the commissioners have been influenced by passion or prejudice. Matter of Brook Avenue, 8 App. Div. 294; Matter of Manhattan R. Co. v. Comstock, 74 id. 341; People ex rel. City of New York v. Stillings, 138 id. 168. The contention of the claimant that the commissioners erred in excluding testimony to show the availability of his property for particular purposes is contrary to the well settled rule in this state. As was said in Matter of Simmons, 130 App. Div. 352, affd. 195 N. Y. 573: “It is unnecessary to cite and comment upon the various cases, decided in the courts of this and other States, upon the subject of damages in proceedings of this character. It is sufficient to say that the rule is well established in this State, by an unbroken line of authority, that the owner is to receive the full value of the land taken, not its value to the' owner or to the person or corporation seeking to acquire it, hut the market value of the property, which means the fair value as between one who wants to purchase and one who wants to sell. The landowner is not limited in compensation to the condition which the property is in at the time or to the use which he makes of it, hut is entitled to receive its market value for any purpose to which, in the judgment of the commissioners, it is adapted. He is, however, not entitled to be paid more merely because the land is peculiarly adapted to the use to which it is intended to be applied. The fact that the land will he used for a reservoir rather than a farm or any other lawful business, forms no material out of which an award is to be made. Whether the land taken is to he used for a reservoir or a garden is a question, so far as the compensation is concerned, with which the commissioners have nothing to do. Their duty is to award compensation for the taking of the land and not for the use to which it will he applied when taken. (Albany Northern R. R. Co. v. Lansing, 16 Barb. 68; Matter of Daly, 72 App. Div. 394; Matter of East River Gas Co., 119 id. 350.) * * * The owner is not entitled to swell the damages beyond the fair market value of the land at the time it is taken by any consideration of the chances or probability that some time in the future it may be used for some purpose to which it is adapted unless it appears that the market value of the property is enhanced by the chances or probability. * * * But the mere hopes of an owner that his property may at some future time be required for a reservoir or storage basin for supplying tbe city of New York or any other city with water cannot be considered unless the probability of such an event in the public mind had in fact affected the fair market value at the time it was taken. (Matter of New York L. & W. B. Co. v. Arnot, 27 Hun, 151.) This rule was stated by Mr. Justice Cullen in Matter of Daly v. Smith (18 App. Div. 197).” The commissioners have committed no error that would warrant any interference on the part of this court; therefore the motion to confirm their report must be granted.

Motion granted.  