
    In the Matter of the Application of the Board of Water Supply of the City of New York, Pursuant to Section 42 of Chapter 724 of the Laws of 1905, as Amended, etc. Business Damage Commission No. 3. Zachariah G. Masten, Claimant, Respondent; The City of New York, Petitioner, Appellant.
    Third Department,
    January 5, 1916.
    Municipal corporation — city of New York — claim for damages to hoarding house and livery business by construction of Ashokan aqueduct — evidence.
    Claim against the city of New York for damages to a boarding house and livery business by the appropriation of land for the construction of the Ashokan aqueduct. Evidence examined, and held, that in view of the uncertainty thereof and of the impossibility of making a definite computation, an order confirming the report of the Damage Commission should be reversed as against the weight of the evidence, unless the claimant consents to accept $1,000.
    Appeal by the City of New York from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 10th day of August, 1915, confirming the report of Business Damage Commission No. 3, under section 42 of the Water Supply Act (Laws of 1905, chap. 724, as amd. by Laws of 1906, chap. 314) which made an award of $2,819.35 to claimant for damages to his boarding and livery business conducted on real property known as Northern aqueduct, section 5, parcel 244. This is the second trial of this claim.
    
      Frank L. Polk, Corporation Counsel [William McM. Speer and Lamar Hardy of counsel], for the appellant.
    
      Jenkins & Shufeldt [James Jenkins of counsel], for the respondent.
   Howard, J.:

This is a claim against the city of New York for damages to a boarding house and livery business. The claimant was originally the owner of a farm consisting of 114 acres of land in Ulster county. The city of New York penetrated this farm with its aqueduct and appropriated 9% acres of the land together with certain buildings. Before the advent of the Ashokan reservoir into Ulster county this farm of the claimant had been assessed by the town authorities at $2,700. For the 9% acres taken the claimant was awarded $13,000. After the land was taken by the city the claimant had about 105 acres of the farm left. The original farm house had been enlarged and remodeled by the claimant, and at the time of the construction of the aqueduct the claimant was conducting á summer boarding house business on the premises. This business began about twenty years ago, and was conducted in connection with the ordinary farming business. The summer boarding and livery business gradually increased until 1908. As a result of the invasion of his farm by the city the claimant alleges that his boarding house business has been injured. The Commission before which the claim was tried has allowed the claimant $2,819.35.

This case was tried once before, and the Commission awarded the claimant $1,200. This award was set aside and a new trial granted. Subsequent to the first trial an opinion was handed down by the Court of Appeals in what is known as the Bishop Case (Matter of Board of Water Supply, 211 N. Y. 174). Certain rules applicable to these business damage claims were, in the Bishop case, established for the first time. Applying these rules to the evidence produced on the first trial of this case it is doubtful whether any award could have been made to the claimant. The Court of Appeals held in the Bishop case that many items were properly chargeable against a boarding house business which the Commission in these cases had previously held not to be chargeable. For instance the value of the services of the claimant and his wife and children were held chargeable against the business;- the market value of the farm products; interest on money invested in the business; the expense of maintaining faz*m hoz’ses employed in conveying boardez’s from place to place and various other items. Therefore, on the second trial of this claim it became necessary to introduce other and different evidence from that presented at the first trial, otherwise there could be no recovery.

The evidence which has beezz introduced is different, but the counsel for the city of New York contends that it is untruthful and was introduced expressly to meet the necessities imposed by the Bishop case. And the principal contention of the appellant is that the claimant is guilty of flagrant and deliberate falsehood and should not be permitted to profit by his own perjury. A careful perusal of the record leads us to the conclusion that there are grave and substantial variances between the evidence of the claimant on the first trial and his evidence on this trial, but we are not persuaded that the discrepancies are the result of a deliberate and malicious purpose to swear falsely. In undertaking to produce some sort of figures which might furnish a basis for computation, the claimant became hopelessly tangled in a maze of uncertain data. The accounts of this boarding house business, which evolutionized gradually from farming into boarding, were not managed with the accuracy which characterizes a mercantile establishment. The farming business and the boarding house business were to a considerable extent mixed, and perhaps the claimant undertook in the first instance to do the best he could to supply facts and figures. But the Bishop case made accuracy more necessary; and, whatever may have produced the confusion, it is certain that the claimant’s testimony is full of contradictions, inaccuracies and uncertainties.

Appellant’s counsel contends that this is a case for the grand jury; but, although we do not agree with this contenton, we are impressed with the idea that the claimant put forth strenuous efforts to make the second trial fit the law of the Bishop case. The Commission, we think, also fell into many errors and several absurdities. The Commission, for instance, assumed that the claimant made a profit out of boarding his own children, even though they, in fact, paid no board. In computing the profits which came to him from his boarding house business, the Commission allowed the claimant six dollars a week each for the board of two sons and three dollars per week each for the board of three small daughters. This imaginary income made a total of $272, which was added to the gross receipts of the business. This is one of the absurdities to which we refer. No attempt has been made by the claimant’s attorney to explain this item, and it is beyond our comprehension to understand how a man can make money out of boarding his own children, or, in fact, out of other persons, if they do not pay board. But, notwithstanding this and several other missteps, we do not think the Commission deviated materially from the correct theory in attempting to compute the profits of the business. We are not so much impressed by the errors into which the Commission fell as by the unsatisfactory character of the evidence on which the award is based.

We have not undertaken to figure out the exact amount which we think should have been awarded to the claimant, for we disagree with the appellant’s counsel when he says that the matter “ is simply an arithmetical one.” It does not, in our opinion, reduce itself to a question of arithmetic. If we were able to separate the figures that are absolutely reliable from those which are wholly incredible, it might be possible to figure the award out to a mathematical certainty, but our examination of the record convinces us that this cannot be done. We are persuaded; however, that the claimant did have an established boarding house and livery business, from which he was making a substantial profit before it was interrupted ■ by the Ashokan aqueduct. This business seems to have been very considerably injured, if not destroyed, by the city of New York, and we think justice would be substantially meted out to both litigants if the claimant were given $1,000.

Therefore, in view of the uncertainty in the evidence, and the impossibility of making a definite computation, we direct that the order be reversed, as against the weight of evidence, and a new trial granted before some Commission other than the one before which this trial was had, unless the claimant consents to accept $1,000, in which event the order as so modified should be affirmed.

All concurred; Cochrane, J., in result.

Order reversed as against the weight of evidence and a new trial granted before some Commission other than the one before which this trial was had, unless the claimant stipulates to reduce the award to $1,000, in which event the order is so modified and as modified affirmed, without costs. The court disapproved of the finding that the damages were $2,819.35.  