#### In the Matter of the Application and Petition of George B. McClellan and Others, Constituting the Board of Rapid Transit Railroad Commissioners of the City of New York, etc., for the Appointment of Commissioners of Appraisal, etc., Relative to Acquiring the Perpetual Easements Necessary for the Construction, etc., of an Elevated Railroad in Westchester Avenue from Third Avenue to the Southern Boulevard, etc.

First Department,

July 10, 1913.

Eminent domain—damages caused by construction of elevated railroad in city of New York—award of damages less than amount testified to by city’s expert insufficient.

Where from the report of commissioners appointed to ascertain the damage to three apartment houses caused by the construction of an elevated railroad in the city of New York, it appears that they awarded only *772two-thirds of the amount which the .expert for the city testified constituted the damage to the fee, their report should he reversed and the

proceedings remitted.

Appeal by John Wynne from so much of 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 9th day of May, 1912, as confirms the report of the commissioners of appraisal herein as to damage parcel No. 17, and overrules his objections thereto.

*Benjamin Trapnell,*for the appellant.

*Charles J. Nehrbas,*for the respondent.

Per Curiam;

The premises in question are located on the southerly side of Westchester avenue, and the award was $12,500 for fee damage and $2,250 for rental damage. The structure at the point in question is of the usual elevated type. Each of the lots has a frontage of 27 feet by an average depth of about 125 feet. The buildings are three five-story apartment houses.

Two experts only were called to testify to value. The appellant’s expert testified to a depreciation in fee value of $32,500, and to a correspondingly large rental damage. The city’s expert testified that the fee damage was $18,625.11. The fee value he placed upon the three lots of land made the second worth less than $500 more than the first, and the third $490 more than the second, or a difference of less than $1,000 between the first and third. The value of each of the three houses was practically the same. In other words, the testimony of the city’s witness shows unquestionably that he regarded the three houses and lots as practically of equal value, and he did not attempt to assign to one any greater or less damage than to the other. Nor did their situation warrant any such difference. Taking the fee depreciation testified to by the city’s expert, $18,625.11, and dividing it by three, shows that the award of the commissioners was practically two-thirds of the amount the expert for the city testified was the fee damage suffered by the three houses. The appellant argued and we think properly, that this fairly gives rise to a presumption of *773clerical error, or that by some mistake the commissioners gave the appellant only two-thirds of what he was clearly entitled to, based upon the city’s testimony. But whether there was any such clerical mistake or not, we think, unless the testimony most favorable to the city is to be wholly disregarded, that the commissioners manifestly awarded appellant too small a sum for fee damage. The same expert for the city testified that the rental damage was $51 per month per house, or $153 for the three houses, equalling $1,836 per year; also that he adopted the ratio of nine and eighty-one one-hundredths per cent of rental value to fee value. Applying that to his testimony on fee damage confirms the conclusion that the fee damage was the same as to all three houses.

The order, so far as appealed from, is reversed, with ten dol- ■ lars costs and disbursements, and the proceedings remitted to the commissioners to make a new award in accordance with this opinion.

Present—Ingraham, P. J., Laughlin, Scott, Dowling and Hotchkiss, JJ.

Order reversed, with ten dollars costs and disbursements, and proceedings remitted as stated in opinion. Order to be settled on notice.