
    In the Matter of the Application of Thomas F. Gilroy, etc.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    Condemnation proceedings—Award—Vacation.
    To justify a court in setting aside the award of commissioners in a condemnation proceeding, it must he so inadequate a,s to afford evidence of partiality, fraud or undue influence.
    Appeal from an award of damages.
    
      Bangs, Stetson, Tracy & Me Veagh, for app’lt; Wm. H. Glark, for resp’t.
   Pratt, J.

This proceeding was instituted under chapter 490 of the Laws of 1883, commonly known as the “Aqueduct Law,” to acquire land in Westchester county for a storage reservoir. Commissioners were duly appointed, entered upon.their duties, viewed the premises, heard testimony and arguments, and made a report. The only ground upon which the report is sought to be set aside is that the commissioners failed to award a sufficient amount to the appellant to afford him “ just compensation” for the property taken, and damages caused by such taking. It is to be observed that it is not claimed that there is any irregularity in11 the proceeding, or that any legal principle has been violated, but simply that, upon the proofs, the award is insufficient in amount. The evidence is conflicting, no two witnesses fully agreeing as to a proper amount; but the report in no respect is lower than the sum fixed by any witness who testified to the lowest amount, or, in other words, the report is at a sum between the highest and lowest estimates; so that, as sometimes said of a verdict,' it is supported by the evidence. But it must be recognized that the commissioners were not entirely bound by the oral testimony. They saw the property, its location and capabilities, and their report must stand', unless it is apparent that the sum awarded is so grossly inadequate as to afford evidence of partiality, fraud,' or undue influence. It must appear that the award is grossly inadequate, to justify a court in setting it aside. The rule is well settled that, except in extreme cases, an appellate court will not set aside an assessment unless the same is clearly proved to bq grossly inadequate, or that the commissioners fell into some error in their estimates, or adopted some erroneous principle. Because the land owner may have more witnesses is not sufficient to overcome the opinions of the commissioners. In re Central Park Extension, 16 Abb. Pr. 56; Railroad Co. v. Lee, 13 Barb. 169. Under well-settled principles, the order appealed from must be affirmed.  