
    Langdon v. Mayor, Etc., of City of New York.
    
      (Supreme Court, General Term, First Department.
    
    June 26, 1891.)
    Action by Walter Langdon against the mayor, etc., of the city of Hew York. Motion to confirm referee's report and for judgment.
    For former report, see 13 N. Y. Supp. 864.
    Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
    
      W. H. Peckham, W. F. Marron, and T. L. Ogden, for plaintiff. T. P. Wickes, for defendant.
   Van Brunt, P. J.

A similar motion upon the former report (13 N. Y. Supp. 864) of the referee herein came before this court upon a previous occasion, and at that time the court, being of opinion that the valuation of the referee was too low and the claim of the plaintiff too high, and that the referee had excluded competent testimony which might have afforded a fairground upon which an estimate of value might be founded, referred the case back to the referee to take such additional proof as might be offered by the parties. Upon such rehearing before said referee such additional testimony was taken; and, founding his decision thereon, the referee has reported what-seems to this court to be a fair valuation of the rights of which the plaintiff has been deprived by the action of the defendant. It is not necessary in the present disposition of this motion to discuss the evidence at length which was introduced on either side, as such evidence upon the previous motion was examined and considered, and a conclusion come to in respect thereto. It was-there plainly intimated in the opinion of the court that, if the testimony which was excluded had been received, a basis would have been formed upon which a proper award by way of damages might have been made to the plaintiff. It is claimed upon this motion by the plaintiff that the valuation of the referee is too low, and by the city that it is too high; but we think, upon a consideration of the whole case, that the referee’s report should now be confirmed, and judgment given to the plaintiff based upon the valuation found, by him at the time of the appropriation of the said property by the city, and interest thereon. There is also a motion for an extra allowance, which motion, in our opinion, should be granted, and the plaintiff allowed 5 per cent, upon the amount recovered. All concur.  