
    Matter of Acquiring Title to Summit Avenue, from East One Hundred and Sixty-first Street to East One Hundred and Sixty-sixth Street, in the city of New York.
    (Supreme Court, New York Special Term,
    May, 1901.)
    New York city—Commissioners of estimate — Awards.
    Where owners of land taken by a city litigate before a commissioner of estimate and assessment without objecting to him and he thereafter makes affidavit that he had disposed of any property owned by him within the area of assessment before the filing of the final report, an objection to his competency to act comes too late when taken on confirmation of the report.
    An owner of land taken by a city under legislative authority is entitled to a substantial award although other parties have easements in the land.
    An award is not substantial where the difference between the value given by the witnesses and the award indicates that the commissioners must have mistakenly considered the land subject not only to private but also to public easements.
    ■Where a city destroys buildings erected on land, with the consent of owners of private easements therein, once shown on a map as a street but which has ceased to be such because it was neither opened nor worked as such within six years from the filing of the map, the city must make the owner of the buildings a substantial award.
    Objections to the confirmation of the report of the commissioners of assessments.
    The facts sufficiently appear in the opinion of the court.
    John Whalen, Corporation Counsel (John P. Dunn, Assistant Corporation Counsel), for city of New York.
    McCarty & Baldwin, and Robert J. Fox, for objectors.
   Lawrence, J.

In this case I am of the opinion: First. That the amounts awarded to the objectors, Weinstock and Purdy, for the parcels shown on the damage map as numbers 57 and 58 cannot be said to be so inadequate as to justify the court in inter7 fering with the determination of the commissioners. The commissioners were not concluded by the opinion as to value given by the expert who was examined on hehalf of the property-owners, and were entitled to act upon their own judgment as to that subject, as has been frequently held in proceedings of tin's nature. City of Syracuse v. Stacey, No. 1, 45 App. Div. 260, and cases cited. Second. The objection to the competency of Mr. Brown to act as one of the commissioners is not well taken, for the reason that the objectors appeared before the commissioners and litigated before them without objection, and also because the affidavit of said commissioner, read in reply to the affidavits in support of such objection, shows that he did not own any property within the area of assessment, and that the property referred to in the objector’s affidavit, owned by him and his mother, was disposed of before the filing of the final report. Matter of Southern Boulevard, 3 Abb. (N. S.) 447; Matter of the Spuyten Duyvil Parkway, 67 How. Pr. 341; Matter of Application of Cooper, 93 N. Y. 507. Third. With regard to the objections urged by Mr. Fox on behalf of the Messrs. Devoe and Mrs. Ray-nor, I think that it is quite clear that there were private easements in the street shown upon the map of High Bridgeville,” which was filed in the office of the clerk of Westchester county. The street delineated upon that map never became a public highway or street, because, under the act of 1861, chapter 311, as it was not opened or worked within six years from the time of the filing of such map, it ceased to be a road or street for any purpose as regards the public. I do not think, however, that it can be successfully contended that there were not private easements in that property existing in those who had purchased from grantors, whose deeds referred to the map in question, and the Messrs. Devoe and Mrs. Raynor come within that class. It is well settled that the owner of land which is subject to easements vested in adjoining owners is entitled to substantial damages where the fee is sought to be acquired under legislative or municipal authority for the purposes of a public street. City of Buffalo v. Pratt, 131 N. Y. 293. The only question as to the awards in this case made to the Messrs. Devoe and Mrs. Raynor is as to whether they are nominal or substantial. The expert examined on behalf of the city testified in substance that if the street were not dedicated to public use he would estimate the value of the lots found within the limit of the avenue from One Hundred and Sixty-first to One Hundred and Sixty-fifth street at thirty-three and one-third cents per square foot. I understand it to be conceded that the allowance made by the commissioners to the Messrs. Devoe and' to Mrs. Raynor is at the rate of five cents per square foot. The Messrs. Devoe owned 1,875 square feet, which, at thirty-three and one-third cents per square foot, would amount in value to $625. Mrs. Raynor owned 9,000 square feet, which, at thirty-three and one-third cents per square foot, would amount in value to $3,000, and the valuation placed upon her buildings by the expert for the property-owners was $1,180. These parties have been awarded by the commissioners as follows: Messrs. Devoe, $93.75; Mrs. Raynor, $435.35, and no award was made to Mrs. Raynor for the buildings. It seems to me that, under these circumstances, it is apparent that the commissioners have not made a substantial award to these parties. By this I do not mean that the rule that the commissioners are entitled to act largely upon their own judgment in fixing values should be disregarded; but the difference between the value given by the witnesses and the award for damages made by the commissioners is so great that I think the commissioners must have regarded the land taken as subject, not only to private, but to public, easements. Nor do I think that, as the land taken had never been- worked as a public road or highway, it can be said that the buildings for which Mrs. Raynor asked compensation were illegally erected within the line of the proposed street. They were permitted by the owners of the private' easements, for aught that appears to the contrary, to be built, and the city ought not to take and destroy them without making compensation for their value. The report of the commissioners should, therefore, be sent back for revision and correction in accordance with these views.

Ordered accordingly.  