
    In the Matter of the Application and Petition of William R. Willcox and Others, Constituting the Public Service Commission, etc., Relative to Acquiring Underground Rights, etc., for the Construction, etc., of a Rapid Transit Railroad, etc. Flatbush Avenue Extension, Fourth Avenue Subway. Proceeding No. 1. The City of New York and The Public Service Commission for the First District of the State of New York, Appellants; Patrick H. O’Brien and Others, Respondents.
    Second Department,
    December 24, 1914.
    Eminent domain—Mew York city—right of award as between owner and tenant —tenant’s right to compensation—when lease terminated.
    The commissioners of appraisal in condemnation proceedings should deduct from the award made to the owner of land taken damage which they find was sustained by his tenant.
    Where the commissioners report that they viewed the premises but gave neither opinion nor statement indicating the theory on which they base their award to the owner for permanent easement, temporary easement and for use of the estate, and the award to the tenant for destruction of his lease and for fixtures was for a certain sum composed of two items respectively, and there is no proof that the item for the destruction of the lease was not deducted from the award to the owner of the land, but the conclusion that the commissioners of appraisal did not do so rests upon the proposition that they adopted the city’s witnesses’ valuation by which they were not bound, their report will not be disturbed as, assuming that they adopted the figures of the owner’s expert witnesses, they could have applied the correct rule of damages, such assumption being justified in that it is harmonious with the presumption that they did so.
    Trade fixtures are a part of the realty, and so long as they remain fixtures are included within the scope for which compensation must be made in condemnation proceedings.
    Where the lease provided that “in case of the total destruction of the premises, by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth this lease shall cease and come to an end,” the words “ or otherwise” must receive a ejusdem generis interpretation. The lease as between the parties thereto was not destroyed “by fire or otherwise,” but only when the power of eminent domain was exercised.
    Appeal by the Public Service Commission for the First District of the State of New York and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of July, 1913, confirming the report of commissioners of appraisal herein as to damage parcel No. 22.
    
      Charles J. Nehrbas [Terence Farley, Edward J. Kenney, Jr., and Frank L. Polk with him on the brief], for the appellants.
    
      James E. Kelly, for the respondent Shannon Estate, lessee.
    
      Robert H. Elder [Otho S. Bowling and Michael F. O’Brien with him on the brief], for the respondent landlord.
   Jenks, P. J.:

The Public Service Commission and the city of New York appeal from the appraisal and award of commissioners in condemnation of certain property taken for subway construction in the borough of Brooklyn. It is insisted, first, that there is error in the application of the rule of damages in that the commissioners failed to deduct from the owners’ award the damage which they found was sustained by their tenant. The rule itself is, I think, well settled in accord with the appellants’ contention. (Matter of City of New York [Delancey St.], 120 App. Div. 700; Matter of Daly, 29 id. 287; Lewis Em. Dom. [3d ed.] § 719, citing cases.)

We have neither opinion nor statement of the commissioners indicating the theory or the process of their awards. But the report contains certain definite amounts awarded respectively for specified property rights. To the owners was awarded for permanent easement $33,600, for temporary easement $14,656, for use of the estate $1,680. To the lessee was awarded for destruction of lease and for fixtures $10,400, composed of the items $5,400 and $5,000 respectively. The able counsel for the appellants concedes that there should have been an award for the damage to land, and that the commissioners added correctly thereto $14,656 for the value of the building. But his proposition is, as I have said, that they should have deducted from the sum of those two items the said damage of $5,400. Proof that this was not, done rests admittedly upon the assumption that the commissioners adopted a valuation of the expert witness called by the appellants. That witness testifies that the damage to the permanent easement was $47,656.' The counsel deducts therefrom that witness’ valuation of the buildings, $14,656, so that the remainder is $33,000, while the compensation as determined by the report is $33,600. As the commissioners awarded $5,400 to the tenant, it is argued that they could not have deducted the $5,400. The difference of $600 between the said $33,000 and $33,600 is explained by the counsel in these words: It is quite apparent that the commissioners added $600 to the city’s testimony as to the damage to the land. ” But there is no proof that the commissioners made such an addition, or any addition. It is only " apparent ” in the sense that if the commissioners adopted the values of the city’s witness there was a discrepancy of $600 that must be accounted for in some way.

There is no proof that the commissioners did not deduct the $5,400, and the conclusion that they did not do so rests upon the proposition that the commissioners adopted the city’s witness’ said valuation of $47,656. Why should we assume that the commissioners followed the figures of the city’s expert witness ? We have as much right to assume that they adopted the figures of the owners’ expert witness. Nay, if it appear that upon such assumption the commissioners could have applied the correct rule, the assumption is justified in that it is harmonious with the presumption that they did so. (Harlem River & P. R. R. Co. v. Reynolds, 50 App. Div. 575; Haight v. Village of Peekskill, 21 Wkly. Dig. 80; Matter of Thompson, 14 N. Y. St. Repr. 522; affd., 127 N. Y. 685.) The owners’ expert witness testifies that the damage to the permanent easement was $53,512. If we deduct therefrom his valuation of the building (which agrees exactly with that of the city’s witness and that found in the report), $14,656, the remainder is $38,856. If from this sum, in obedience to the rule, there is deduction of the tenant’s $5,400, the result is $33,456, which is but $144 less than the said award by the commissioners of $33,600. The counsel comments that the award exceeds the total damage estimated by the owners’ expert witness by $144. But it is a familiar principle that the commissioners are not bound by the testimony of witnesses. (Matter of Town of Guilford, 85 App. Div. 207, and authorities cited.) The commissioners report that they viewed the premises. (See Matter of New York Elevated R. R. Co. [ Westervelt], 35 N. Y. St. Repr. 944.)

It is insisted, second, that no award should have been made to the tenant for the destruction of fixtures. For it is contended that “ These articles were all ' trade fixtures ’ and were personal property.” I think that these articles were within the scope of the compensation to be made. They are “ a part of the realty, so long as they remain fixtures; and damages are recoverable if they are destroyed or injured in value. ” (Edmands v. Boston, 108 Mass. 535. See Jackson v. State of New York, 213 N. Y. 34; Lewis Em. Dom. [3d ed.] § 728, citing authorities; and see Matter of Willcox, 142 App. Div. 680; Matter of City of New York, 192 N. Y. 295; Matter of City of New York [North River Water Front], 118 App. Div. 865; affd., 189 N. Y. 508.)

The owners (and landlord) contend that the award for permanent and temporary easements should be paid to them, but assert that “They have no interest whether the two awards should be paid to the tenant or not.” Our disposition of the case upon the lines of the present opinion for affirmance would seem to satisfy them, inasmuch as they pray that the order be affirmed. The point of the landlord, that the tenant was not entitled to any compensation for the lease, is not well made. The proposition is that the lease contained a fire clause, providing that if the premises should be partially destroyed by fire there should be repair, etc. “But, in case of the total destruction of the premises, by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth this lease shall cease and come to an end,” etc., and that the words “ or otherwise ” covered this exercise of the right of eminent domain. But I think that the words “ or otherwise” must receive an ejusdem generis interpretation. (See the rule stated in People ex rel. Huber v. Feitner, 71 App. Div. 481, citing authorities. See, too, Lewis v. Smith, 9 N. Y. 502; People v. Elfenbein, 65 Hun, 434.) This is also evident from the history of the so-called fire clause in leases in this State. (See Suydam v. Jackson, 54 N. Y. 450; Johnson v. Oppenheim, 55 id. 280.) Curiously enough, Earl, C., in describing the common-law liability of the tenant in the first case cited, uses the word “ otherwise ” as I think it is used in the said clause of the lease (p. 453). The lease, as between the lessor and lessee, was not destroyed “ by fire or otherwise.” Of course, it was destroyed when the exercise of the power of eminent domain was made, but only then.

I recommend affirmance, with ten dollars costs and disbursements.

Burr, Thomas, Rich and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  