
    In the Matter of the Application and Petition of John A. Bensel and Others, Constituting the Board of Water Supply of the City of New York, Appellants, to Acquire Real Estate etc., in the Town of Olive, Ulster County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of The City of New York, Appellant. (Ashokan Reservoir, Section No. 12; Parcel 570.) Azarias Winchell and Elwyn Winchell, Respondents
    TMiid. Department,
    December 28, 1911.
    Hew York city—■ condemnation—water supply — compensation, for destruction ofhusiness — mistrial.
    Where property used, for business- purposes is condemned by the city of Sew York under chapter 72.4 of the Laws of 1905 as amended, the damages to the business of the claimant should he determined as far as possible and compensation be made-in the same proceedings in which the land is acquired.
    In. an order making a certain award.for store-property condemned, it is irregular to insert a provision that the claimants shall not thereby he prejudiced from prosecuting them claim against the city for the .destruction of the business.
    
      Record examined, and held, that the proceedings were a mistrial and a new trial granted in which all the damages sustained may be heard and determined.
    Appeal by John A. Bensel and others, constituting the board of water supply of the city of New York, and another, from that part of an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 2d day of September, 1911, which confirms in respect to parcel 510 _the award to Azarias Winchell and Elwyn Winchell. of $15,000 for property taken for a reservoir.
    
      Archibald R Watson, Corporation Counsel [ William McM. Speer of counsel], for the appellants.
    
      A. T. Clearwater, for the respondents.
   Kellogg, J.:

The award and the order appealed from allow the claimants $15,000 for the store property condemned and contain the so-called business proviso by which it is substantially provided that the claimants shall not be prejudiced thereby from prosecuting their claim against the city for the destruction of the business carried on in.said store. The city complains that the damages allowed are excessive; that the commission and the court had no power to add the business proviso to the award and order; that the appropriation of the store premises necessarily destroyed the business, and the claimants have but one entire claim, which cannot be separated; that the record shows that the witnesses based their value of the store property to quite an extent upon the fact that it was an old established store which had been successfully operated for years, and that, therefore, some of the damages for a destruction of the business' has necessarily been included in the award and order. This contention seems substantially correct, and the history of the case shows that the aw;ard is the result of a mistrial.

The original claim as prepared sought to recover for the value of the property and the loss of the business. But before it was filed, in March, 1909, the allegation and claim with reference to a destruction of the business was erased by the claimants’ counsel. ha all this class of cases up to that time, and until the decision by the Court of Appeals of the Lasher case, May 17, 1910 (People ex rel. Burhans v. City of N. Y., 198 N. Y. 439), the city had contended that a claim for a destruction of business could not be united with a claim for property táken, and the courts had sustained that contention. (Matter of Simmons, 58 Misc. Rep. 581, 589.) The evidence was taken January 28, 29, and February 11, 1910, on which date the case was finally submitted to the commission. The report of the commission was made August 29, 1910. Between the submission of the case and the report the Lasher, case had been decided by the Court of Appeals, and it then became plain for the- first time that damages to a business in these reservoir cases should be determined as far as possible in the proceedings taken to acquire the property affected. (See, also, Matter of Bensel, 140 App, Div. 806.)

It evidently was the duty of the claimants after that decision, if they desired to retain and prosecute a claim for destruction of business, to obtain a rehearing before the commission, amend their claim and prove their damages. This was not done, and the commission attempted to relieve them as far as it could by inserting in the report the business proviso referred to, which the Special Term inserted in the order. That practice was irregular and should not be encouraged. Beither should the city be permitted to avoid the claim for damages for destruction of business by its improper contention in all this class of cases that such claim could not be heard with the claim for the taking of the property. The claimants were undoubtedly misled by this position taken by the city and the decision which it obtained in the Simmons case. The store property cost $1,000; from the evidence relating to it and the photograph of the property the award seems excessive, and perhaps can only be accounted for from the fact that an old established business had been successfully conducted upon the property for years, and it is evident that the witnesses as to value of the property were influenced more or less in their estimates by the successful business conducted at the store. There has evidently been a mistrial, and probably the damages awarded are too much for ti®; meal' estate- alome-, amid. insufficient for- the: meal estate «¿6 the- destruction. of the business; together.. If the order- standsrit is not clear; .notwithstanding- the business; proviso1,. that the-..claimants; are- at liberty to-prosecute a. claim for the destruction=©£ the business;. If: they may do; so. it/will: he ■difficult-1® dietermine, pist.what the: loss- torthe- business; is, as it is not -clear' bow much-of such loss; has, already .been. cumsiderad.

. 1h@-claimants^"'diamag.es were caused, by one- act and! hut one proceeding- should' be hadi im -indemnifythem.. .A. division, of thecl^im. must- result; in. -difficulties) and aaxiepisib® tesóme one inn attempting" tex make- two- cases laut- o£ -one.. Upon a, rekearimg-it can be'miade. clear what is the: value- of the: .property -appropriated and- what damages, .the- idaimanfelLave suffered by the .destruction.-of their- business, . It .is better-not to say that the award of ■■$lr5,.@.O0i for the- real estateis; esrcessive. It is difficult t©> determine -that, question femm. ike.-manner, in which the case was tried. It is better to rest thisdeBisionnpon the ground that, the proceedings, were a. mistrial,, :and that the due adtaunistration of - justice requires-that there- -leva. new trial, in which all of the damages, sustained by the claimants maybe heard and determined, Tffie.determination.oi: the commission and the -order1-appealed from, should) be reversed and. a, rehearing granted;: the claimants- may at their -election .amend the elaim filed by restoring-the parts: stricken therefrom with reference t'o-the- destruction of- business.. -E® costs of the- appeal am allowed.

All concurred; Betts, J'„, not sitting.

Order reversed and rehearing granted, asper ©pinion.  