
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, etc., for the Opening and Extending of Titus Street, etc., from Jackson Avenue to the Bulkhead Line of the East River, in the First Ward, Borough of Queens, in the City of New York. Ernest A. C. Schoof, as Executor, etc., of Louisa Burger, Deceased, Appellant.
    Second Department,
    June 24, 1910.
    Eminent domain—city of Mew York—street opening—damages—power of Supreme Court — report contrary to evidence.
    Damages in condemnation proceedings are to be awarded as of the date when the award is made.
    Although the record on appeal from a judgment confirming the report of ■commissioners of estimate and assesssment in condemnation proceedings does not ■ show an improper application of rules for the determination of the damages, the Appellate Division may refuse to sanction the confirmation.
    Commissioners of estimate a.nd assessment in proceedings by a city to acquire title for a street opening should not arbitrarily and without justification award damages, largely' below the figure to which the city is committed by the testimony of its witnesses.
    Where such proceedings have dragged along for two years and the city’s expert being recalled testified that the valué of the premises has increased nearly §2,000 since he first testified two years before, and .the other evidence shows a greater value than he places on the land, a report which awards damages in the sum to which the expert- first testified should not be confirmed. This, although it appears that the commissioners viewed the premises early in the proceedings.
    Burr, J., dissented. -
    Appeal by Ernest A. O. Schoof, as executor, etc., 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 Queens on the 21st day of December, 1909, confirming the report of commissioners of estimate and assessment.
    
      Benjamin Trapnell [Joseph A. Flannery with him on the brief], for the appellant.
    . Joseph 6. Mathews [Joseph J. Myers and Archibald B. Watson with him on the brief], for the respondent.
   Woodward, J.:

.It is conceded that all the steps were taken in dne and proper form leading up to the award of' damages in this proceeding, and the only question presented on this review is the alleged inadequacy of the award of $7,626, this being the amount testified to by the city’s own expert witness on the 21st day of November, 1905. The proceeding dragged along and on the 4tli day of June, 1908, the same witness was re-examined as to the value of the premises at that time, and he testified that owing to changed conditions the property was worth $9,531, while the witnesses called by the appellant, who filed objections to the preliminary report, reached as high as $16,357, the next lowest figure being $16,117. Notwithstanding the testimony of the city’s own witness that the property had increased in value nearly $2,000, and with nothing on the record to show any reason for questioning this testimony, the commissioners adhered to their original figure. The learned court at Special Term has confirmed this award, and the appellant comes to this court and asks for a reversal of the order.

It is not to be doubted that in condemnation proceedings 'damages are to be awarded as of the date when -the award is made (Matter of Brooklyn Union El. R. R. Co., 105 App. Div. 111), and if it was in fact true that the premises were worth considerably more in 1908 than they were in 1905 then it was the duty of the commissioners to recognize this fact and to make their award accordingly. There is no conflict in the authorities submitted on either side of this controversy. The rule is well established, as insisted by the respondent, that where commissioners are authorized or required to view the premises, and such view is made, the commissioners áre not bound by the testimony of experts, and that in the absence of matters in the record showing that improper rules have been adopted in arriving at the damages, the amount fixed by the commissioners will* not ordinarily be interfered with, but it is equally the law that where the record does show an improper application of rules to the determination of the damages, this court is justified in refusing to sanction the confirmation of a report. In other words, the power and'the duty to review the act of the court at Special Term in confirming or refusing to confirm a report of commissioners, presupposes authority in the Supreme Court to determine whether the constitutional rights'of individuals ' to just compensation for the property taken for public purposes have been met. In the present case the testimony of one Ryan, called by the city of Mew York, the moving party in taking.the premises of the appellant, appears to have been accepted in 1905 as controlling; his exact figures were adopted in the preliminary report. This action on the part of the commissioners must be looked upon as an expression of their confidence in his judgment and integrity at that time. More than two years later, with no fact appearing in the record to discredit this same witness, he testified on behalf of the city of Me w York that -the premises were worth nearly $2,000 more, owing to changed conditions, and without a particle of evidence in the record to combat this testimony, and with the appellant’s witnesses placing the figure far above those named by Ryan, the commissioners adhered to the original award. So far as any evidence appears in the record, the city of Mew York, desiring to take the premises, says the damages are $9,531, while the commissioners, charged with the duty of making'just compensation to the party'whose premises are taken, say that the city of Mew York does not know the-value of the property; that it is in fact nearly $2,000 less than its own witness says. We- do not think that this, is meeting the requirements of the law; we do not believe that it- is within the province of commissioners to arbitrarily set up their own opinion against that of the witnesses called by the city, and to award damages largely below the figure to which the moving party is committed without something appearing in the record to justify; such action. When a party comes into court and makes an admission against his interest, no court or judicial tribunal is justified in assuming that the admission is not true without at least pointing out the reason for discrediting it; it carries with it the presumption, of ■ truth, and this presumption is not to be overcome by the mere fact that the commissioners might themselves have reached a different conclusion upon the viewing of the premises. It ought at least to have appeared in -the record that the commissioners viewed the premises at or near the time that the testimony of Ryan was taken in 1908, -but our attention is not calléd to any such fact, although it appears that they did view the premises earlier in the proceeding. ■ This view of the commissioners, it. seems to us, is for the purpose of enabling the commissioners to give the proper weight and effect to the evidence before them, and it might justify them in giving larger damages, than some of the witnesses thought proper, or even less than some of them declared to be sustained, but where the evidence produced by the moving party in a proceeding for taking property for public purposes fixes a sum, without any disagreement in the testimony on that side, we are of the opinion- that the cases do not justify a holding that the commissioners are authorized to ignore such testimony and to substitute their own opinion, in such a manner as to preclude the Supreme Court from reviewing the determination. That is not in harmony with that due process of law which is always demanded where rights of property are involved, and would make it possible for a corrupt commission tó entirely disregard the rights of the individual to the undisturbed enjoyment of his property, or its equivalent. On the face of this record, it seems to us, the commissioners have adopted an erroneous rule in the determining of the damages sustained by the appellant, and the order appealed from should, therefore, be reversed.

The order appealed from should be reversed and the matter should be sent to new commissioners to determine.

Thomas and Carr, JJ., concurred ; Burr, J., read for affirmance.

Burr, J. (dissenting):

I dissent. The evidence clearly establishes that the commissioners viewed the premises at various times during the. course of the proceedings. I do not see how we can set aside their determination,. in view of that fact, upon the evidenee in this case., without overruling all of the decisions from Matter of Brook Avenue (8 App. Div. 294) to Matter of Simmons, Ashokan Reservoir (132 id. 575).

Order reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term for further disposition in accordance with opinion by Woodward, J.  