
    In the Matter of Acquiring Title by The City of New York, Appellant, to Certain Lands and Premises Situated on the Westerly Side of Avenue A or Sutton Place, on the Northerly Side of Fifty-ninth Street, on the Southerly Side of Sixtieth Street Between Avenue A or Sutton Place and First Avenue, in the Borough of Manhattan, in the City of New York. Duly Selected with Other Property as a Site for the Blackwell’s Island Bridge. David Shapiro and Others, Respondents.
    First Department,
    March 22, 1907.
    Eminent domain — appraisal of lands on' condemnation—erroneous valuation — evidence of value.
    The award of commissioners of estimate and appraisal for lands taken hy the city of New York hy eminent domain considered and confirmation refused.
    On the appraisal of such land it is error to exclude evidence of the actual-rents received upon the question of value. The rental of improved realty is relevant on the question of fee value.
    It is error to consider evidence of what, unimproved property would earn if apartment houses were built thereon, as it involves elements of uncertainty and speculation.
    On the question of value it may he shown how much the market value of a lot is enhanced hy a building thereon, hut evidence of the structural cost of the building is not competent.
    It is error to allow expert witnesses upon redirect examination to testify in,_ ■ regard to sale of pieces of property about which they had not been interrogated on cross-examination.
    Appeal by the petitioner, The City of New York, from an order of the Supreme Court, made at the New York Special- Term and entered in the office of the clerk of the county of New.York on the 20tli day of November, 1906, confirming the report of the commissioners of estimate and appraisal in condemnation proceedings.
    
      Theodore Connoly [Charles N. Harris and Thomas F. Noonan with him on the, brief] and William B. Ellison, Corporation Counsel, for the appellant.
    
      Albert I. Sire, for the respondents Shapiro and Carstens.
    
      Walter B. Hopping, for the respondents Wendel and others.
    
      Truman H. Baldwin, for the respondent Hyslop.
   Clarke, J.:

■ This‘is an appeal by the city from an order of the Special Term confirming the report of the commissioners of estimate, and appraisal of land taken by the city on Fifty-ninth and Sixtieth streets, between Avenue A and First avenue, as a site for the approach for the Blackwell’s Island bridge.

Notice of the intention to apply for the appointment of commissioners of estimate and appraisal'was dated on February 10, 1905, and the order of appointment was made and entered on the 27th day of April, 1905. The title to the property taken vested in the city on the 9th day of September, 1905. Ón the 23d day of February, 1905, the city purchased No. 48. Avenue A, being parcel 25 on the commissioners’ map, being a lot 27.16 feet frontage by 80 feet in depth, on which was a four-story brick apartment house, for $21,500. For No. 46 Avenue A, parcel No. 24, 27.15 feet frontage, 80 feet deep, upon which there was a building in all respects identical with No. 48, the two possessing a party wall in common, the commissioners allowed $80,209.20. For No. 50 Avenue A, parcel 23, immediately to the north of parcel 25, a lot 27.66 feet by 106 feet 5 inches deep, upon which was a building identical with that on the lots Nos. 46 and 48, the commissioners allowed $33,354.46. No. 52 Avenue A, parcel 27, 25.10 feet frontage, 106 feet 5 inches deep, upon which was a five-story brick building 51 feet deép and a three-story frame building in the rear 25 feet by 24 feet, the city purchased on February 1,1905, for $23,500. For No. 54 Avenue A, 29 feet frontage, 80 feet deep, with a five-story brick building thereon, the commissioners allowed $32,422.37. No. 44 Avenue A, 20.5 frontage, 80 feet d.eep, with foür-story brick building the city bought on February 14,1905, for $16,000. For the lot immediately south of that, No. 42 Avenue A, parcel 22, 23.02 feet frontage, 80 feet in depth, with four-story brick building, the commissioners allowed $40,000. Immediately adjacent to said property but facing on Fifty-ninth street, No. 439, parcel No. 21, with 26 feet frontage, 97.04 feet in depth, with a four-story brick building with an extension, the city purchased on the 24th day of March, 1905, for $22,500. No.'437 East-Fifty-ninth street, immediately adjacent thereto to the west, No. 20 on the map,. 19.05 by 100.42 feet in depth, five-st'ory brick, the commissioners allowed $23,866.55. ' For ,the next three lots, 431, 433, 435 East Fifty-ninth street, all held in one ownership and ea'ch containing a five-story, brick building, the commissioners allowed $99,206.15. Parcel FTo. 31 consists of 9 vacant, lot facing : on Sixtieth street, 100 feet by 100.40 feet.. This property was bought by the owner on March 11, 1905, for • $46,000. The commissioners allowed $65,000, that is an increase in value of this unimproved lot on East Sixtieth street of $19,000 in six months.

The comparison of the amounts awarded by the commissioners-with the amounts paid in these five actual transactions out of a total of thirteen parcels, demonstrates that in allowing these excessive increases in-the estimated value over the actual transactions, the commissioners must have proceeded upon some erroneous theory. An examination of the record discloses certain fundamental errors, the commission of which must have brought about the extraordinary result arrived at.

■Testimony of the owners in regard to the actual rent received for Several years prior to the vesting of title in the city, of 46, 50 and 56 Avenue A was excluded by the commissioners over the objection and exception of the city. The actual rents received are evidence of the rental value. . The rental value of improved real property is relevant on tlie question of fee value. (Jamieson v. Kings County Elen: R. Co '., 147 FT. Y. 322.). Actual rents- given and received within 'the time proper to. be considered were competent... {Cal-, lagher v. Kingston Water Co., 25 App. Div. .82; Cooh v. K. Y. El. R. R. Co., 144 FT. Y. 117.) ■ ' '

In Ettlinger v. Weil (184 N. Y. 179) the court said: “Rental value tends to prove fee value, because other things being, equal, the income from property is a measure of its market value.. Rental value is capable'pf exact determination.”

In regard to the vacant lots, parcel Flo. 31, a witness was asked What would be the best use to which these lots could be put; lie. replied: The erection of “ three apartment houses, * * * making each building about 33 feet.” He was then' allowed to testify,, over objections and exceptions, that the' cost of constructing three such buildings would be $75,000, and that the rental value of such buildings would be between $14,000 .and- $15,000 'a year. This ivas clear error. It involved so much of the elements of uncertainty ■ apd speculation ás to be inadmissible as proof of any fact. As said-•in the case of Tollman v. Met. El. Tt. R. Go. (121 N. Y 119): “There can be no certainty that the plaintiff would ever have erected dwelling houses upon the lots, and there could be no certainty as to the rents which could have been obtained from them either with or without the railroad in'the street.” (See Woolsey v. W. Y. El. R. R. Go., 134 N. Y. 327.)

The same kind of evidence was erroneously admitted in regard to parcel No. 22, where the witness was allowed to testify that he would build up the vacant space west of the building, which is now the yard, with a four-story building, to conform with the structure there now, with a store' on the first floor, and change the front of the building ; that the cost of such addition would be from $2,500 to $2,700, and that with such improvements the rental value of the building would be $3,500 to $4,000 a year..

In regard to a number of the parcels the commissioners erroneously allowed testimony as to the structural value of the buildings. I understand the rule is that a witness may testify as to the market value-of a lot of land and the-market value of the lot with the building thereon standing. In other words, testimony as to how much the market value of the lpt is enhanced by the building standing thereon. What the structural value of the building is is not. competent. A man may purchase a piece of wild land far off from any railroad connection and thereon may build a magnificent structure. No development may take place in the neighborhood, and there may be no demand of any kind for the property. In considering the market value of the real estate under such circumstances, it would be obvious that what it had cost to put the building there could in no way affect the market value of the property as a whole.

In Village of St. Johnsville v. Smith (184 N. Y. 341) the court said: In holding as we do that the appellant is entitled to have the improvements made upon his land by the respondent while a trespasser taken into consideration in ascertaining his compensation, it must be distinctly understood that the measure of such compensation is neither the. cost of the improvements nor their value, or the value of their use to the village. The true inquiry is, how much do the improvements placed upon the property enhance the value of the appellant’s land ? ”

The commissioners also erred in allowing expert witnesses upon redirect examination to testify in.regard to the sale of pieces of property about'which they had not been interrogated on cross-examination. (Robinson v. N. Y. El. R. R. Co., 175 N. Y. 219.)

Realizing as we do that the commissioners of estimate and appraisal constitute a somewhat unique tribunal with the power to take evidence and with the right and duty to themselves view the premises and from such view form an independent judgment, we should hesitate to interfere with their award for any one or perhaps all of the errors pointed out. It is also the rule that the amount of the commissioners’ award for damages'is rarely interfered with by the court. But when we find, as we do in the matter now at bar, such considerable discrepancies between fact and estimate and find so many errors in the admission and the exclusion of evidence, we are satisfied that the awards must have been affected by the -matter erroneously admitted and reach the conclusion that the. award ought not to stand.

The order appealed from is, therefore, reversed and the proceeding sent back to new commissioners to be appointed.

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ.. concurred.

Order reversed and proceeding remitted' as stated in opinion. Settle order on notice. ’ •  