#### In the Matter of the Application of the City of New York, Relative to Acquiring Title, etc., for the Opening and Extending of East Thirty-sixth Street, etc. George M. Cragin Company, Appellant; The City of New York, Respondent.

Second Department,

June 11, 1915.

Eminent domain — city of Hew York — street opening — damages — report of commissioners of estimate confirmed — expert testimony.

The report of commissioners of estimate and assessment in a street opening proceeding in the city of Hew York will be confirmed, unless it appears that injustice has been done by overlooking or disregarding all of the evidence before them, or that they have erred in the theory of their award.

Where their conclusion rests both upon proof presented and upon a view of the premises, criticism confined to the proof necessarily excludes the other element of information.

The commissioners are not bound to accept the lowest estimate of any expert witness called by the city.

An order confirming the determination of commissioners based upon both testimony and a view of the premises affirmed.

Appeal by the George M. Cragin Company, property owner, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day of March, 1914, confirming the report of commissioners of estimate and assessment, as overrules objections to the awards and assessments affecting damage parcel No. 1 and benefit parcel No. 31.

*Philip M. Bromberg [Hugo Hirsh*with him on the brief], for the appellant.

*Howard L. Campion [Melville J. France*and *Frank L. Polk*with, him on the' brief], for the respondent.

Per Curiam:

The report of the commissioners must , stand unless it appears that injustice is done, by overlook or disregard of .all of -the evi*464dence before them, or unless it appear that they have erred in the theory of their award. *(New York Central & H. R. R. R. Co.*v. *Newbold,*166 App. Div. 193, and authorities cited.) Their conclusion rests both upon proof presented and upon view of the premises. Hence criticism that is confined to the proof necessarily excludes the other element of information. The commissioners were not bound to accept the lowest estimate of any expert witness called by the city. *(New York Central & H. R. R. R. Co.*v. *Newbold, supra,*and cases cited.) It is the judgment of the commissioners, not that of the expert, that is called for by the statute. (See Greater N. Y. Charter [Laws of 1901, chap. 466], § 978; Id. §§ 979, 980, as amd. by Laws of 1909, chap. 394.) But if the expert can thus limit the exercise of the commissioners’ judgment, he, not they, decides the smallest amount of the damage that the city must pay, that is, so far as the proof is concerned. (See *Head*v. *Hargrave,*105 U. S. 49.) As to the general principles, see *People ex rel. Hallock*v. *Hennessy*(205 N. Y. 309). And it matters not that such testimony is uncontradicted. Chamberlayne on The Modern Law of Evidence says (p. 2890): “The jury are not necessarily obliged to follow the estimate of a witness simply because he is uncontradicted. Such inferences are not conclusive. It is to be remembered that the conclusion of a witness as to value is merely secondary evidence displacing, only to the extent that seems to be necessary, the reasoning of the jury upon the primary phenomena narrated by witnesses. It follows that neither the inference or conclusion of an observer nor the more ripened judgment of the expert relieves the jury of the duty of doing their own reasoning with regard to the facts of the case.” We think that any expression in *Matter of City of New York (Titus Street)*(139 App. Div. 238) that relates to the question now considered should not be extended beyond the record in that case, which showed *inter alia*an omission of view at a proper time.

The city’s expert estimated the. damage at $1,000; the ' commissioners determined it at $667.32. But their determination was based upon both testimony and view, and. we find no reason to disturb their judgment. We think, also, that the assessment for benefit, complained of, should stand. *(Matter of*
      *465
      *City of New York [2%5th*Street], 150 App. Div. 223, 225; *Matter of City of New York*[ *West 157th*Street], Id. 131, 134.)

Jenks, P. J., Carr, Stapleton, Mills and Putnam, JJ., concurred.

Order in so far as appealed from affirmed, with ten dollars costs and disbursements.