
    (80 Hun, 355.)
    In re BROOKLYN EL. R. CO. In re SINNOTT et al. In re ENGLIS. In re GATER. In re BULKLEY. In re HORTON.
    (Supreme Court, General Term, Second Department.
    July 27, 1894.)
    Eminent Domain—Misconduct of Commissioners—Setting Aside Award.
    In condemnation proceedings, where one of the commissioners to assess damages was absent at every hearing, and frequently two, though the adult owners consented thereto, and the commissioners were not all present, as reouired by Code Civ. Proc. § 3370, when the award was made, and there is no clear preponderance of evidence in favor of the award, it will be set aside, and a second appraisal, before new commissioners, ordered.
    Appeal from special term, Kings county.
    Application by the Brooldyn Elevated Railroad Company to acquire title to real estate or right of way along .Myrtle avenue, in the city of Brooldyn. From orders setting aside the reports of commissioners to assert and direct a second appraisal before new commissioners, petitioner appeals. Affirmed.
    For former report, see 27 N. Y. Supp. 493.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    W. N. Cohen, for appellant.
    Francis Russell Whitney, for respondents.
    Thomas H. Troy, guardian ad litem.
   BROWN, P. J.

The misconduct of one of the commissioners in these proceedings was of so gross a character that the reports should not be confirmed unless the landowners have waived all objections thereto. One of the commissioners was absent from every hearing, frequently two were absent, and very much of the testimony was given before a single commissioner. Two reports were made. The one made by Commissioner Huber states that he had viewed the premises described in the petition, and had been informed, and believed, that his co-commissioners had heard the proofs and allegations of the parties, and that the testimony had been reduced to writing; that he had been furnished with a copy of said testimony, which was stated to be correct; that he had carefully read the same, and had determined the compensation which ought justly to be made to the owner. The compensation awarded in each case was six cents. But in the Sinnott Case no award was made by either report to the infant Charles P. Sinnott, and Commissioner Huber omitted also to make any to the infant John F. Sinnott. A trial conducted as these were is a farce, and the misconduct of the commissioners deprived the reports of that respect which is always due to the determination of a judicial tribunal. But it is said that the property owners consented that the testimony should be taken and the hearings proceed, on each occasion, in the absence of one, and sometimes two, commissioners, and such is the record, so far as the adult owners are concerned. Notwithstanding such consent, we are of the opinion that the orders appealed from should be sustained, unless the awards have the support of the decided weight of the evidence. A litigant ought not to be placed in the position where he is required to proceed with the trial in the absence of the judge. There is a sort of moral coercion in the suggestion that he do so which is opposed to our sense of justice. And gentlemen who are appointed to such responsible positions as commissioners to appraise the value of property taken by the state against the will of the owner should devote to the trials the time and attention necessary to a fair and just consideration of the case, or else resign. Commissioner Huber violated nearly every duty imposed upon him by statute, and evidently misunderstood the character of the position he held; and, if his failure to attend the hearings had been called to the attention of the court, there is no doubt that he would have been promptly removed. The guardian ad litem, however, did not consent, and, if he had, the question whether the award should stand as to the infants would depend upon what was for the best interests of their estate, and not on what the guardian had agreed to. And in the case of John and Charles Sinnott we should hesitate, in any event, to deny to them the right to be upon an equality with their co-owners, and enjoy the award of six cents, which the commissioners denied to them alone of all the owners. But, in relation to the adult owners, there is one objection to the award which they have not waived. The statute requires that, after the testimony in each case is closed, the commissioners, or a majority of them, “all being present,” shall, without unnecessary delay, ascertain and determine the compensation to be awarded to the owners, etc. Code Civ. Proc. § 3370. This requirement was not complied with. Commissioner Huber made a separate report, in which he stated that he was not present at any of the meetings. The report signed by the other two commissioners states that, after the testimony was closed, they determined the compensation to be made to the owners, and made use of the expression “we all being present.” It is apparent, however, from the context of the report, that this expression referred only , to the two commissioners who signed it. The purpose of the statute was that the landowner should have the benefit of the exchange of views and the comparison of ideas which would come from a consultation together of all the commissioners. This has been denied them in these cases, and, while I do not think the result would have been different if such a consultation had taken place, the failure to comply with the command of the statute is an objection of sufficient weight to support the orders appealed from.

The learned counsel for the appellant contends that the reports of commissioners in proceedings of this character should be set aside only for gross and palpable errors of law. If such be the rule, I think I have pointed out sufficient grounds for its application in the cases before the court. But such is not the rule under the present condemnation law. Section 3371 of the Code of Civil Procedure expressly confers the power upon the special term to set aside the report for “irregularity, error in law or upon the ground that the award is excessive or insufficient.”

The rule which requires the testimony to be reduced to writing and attached to the report, and the power given to the special term to set aside the awards when excessive or insufficient, and the right of appeal which each party has upon a case made as in civil actions, all import that the- intention of the legislature was that the award should be reviewed at special and general term upon the facts, as well as upon the law. We therefore come to the .question whether the awards before us have the support of the weight of the testimony. As we have determined that there must be a new trial, upon which the evidence before us may be reproduced, an extended discussion thereof would not be proper. As is usual, the expert witnesses who testified as to the effect of the railroad upon the value of the property did not agree, and, assuming that the commissioners adopted the views of the witnesses called by the railroad company, their award cannot be said to be without some evidence to support it. But a pre-eminent fact in all the cases is that the rents of the property have decreased since the construction of the road, and this fact is not satisfactorily explained by those witnesses who think that the property has during the same period increased in value. It is sufficient to say that the testimony is of such character that it would have permitted a different result, and it does not clearly preponderate' in favor of the award. Taken in connection with the fact that there has not been a fair trial, and no just or proper consideration of the case by the commissioners, the reports were properly set aside, and a new appraisal ordered. The orders appealed from should be affirmed. All concur.  