
    In the Matter of Alfred C. Chapin et al. Resp’ts, v. Moritz Cohen et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.
    
    Condemnation proceedings—Report.
    The court will not set aside the report of commissioners in condemnation proceedings except for some error of law, or upon proof of fraud, or such glaring imperfection in the report, either of inadequacy or excessiveness, as shocks common sense and implies bias, prejudice, misconduct or want of judgment on the part of the commission.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Jeroloman & Arrowsmith, for app’lts; Albert G. McDonald (Howard O. Wood, of counsel), for resp’ts.
   Pratt, J.

It is not necessary to discuss at length the motion made herein to dismiss the appeal, as the case is before the court, and may as well be examined. Neither will we notice the fact that no certificate is attached to the case that it contains all the evidence, in view of the statement which is made that it contains all the material evidence upon the matter involved therein. No error of law on the part of the commission seems to be raised, but the report is sought to be set aside upon the ground that the award of damages is too small and against the weight of evidence, and that the act under which the proceedings were instituted is unconstitutional. As to the first, it is only necessary to suggest that the sworn statements of witnesses are not the ' only evidence in the proceedings. The commissioners viewed the premises, and arrived at their conclusions from such inspection as well as from the state-merits of witnesses. There was no refusal on the part of the commission to hear all the testimony brought forward by the respond-, ents, and, so far as appears, it was duly considered. It is impossible for the court to say that the award is not adequate. The practice is too well settled by a long line of1 decisions that the court will not interfere and set aside a report of such commission except for som eerror of law, or upon proof of fraud, or such glaring imperfection in the report, either for inadequacy or excessiveness, as shocks common sense, and implies bias, prejudice, misconduct, or want of judgment on the part of the commission. The case is bare of any proof to sustain the contention of the appellants that the award is in any respect illegal, or that it is against the weight of evidence. As to the unconstitutionality of the act of the legislature under which the proceeding was taken, it is only necessary to say that the points of the appellants make no suggestion, except that the award was not large enough in amount to give them just compensation. The constitutionality of an act of the legislature does not depend upon the amount of damages, but must be determined by an inspection of the act itself. Report confirmed, with costs.

All concur.  