#### Matter of Acquiring Title by the City of New York to Certain Lands in the Twelfth Ward for the Construction of the South Third Avenue Approach to the Bridge Over the Harlem River at Third Avenue.

(Supreme Court, New York Special Term,

January, 1901.)

New York city — Condemnation — landowners are not entitled to produce further testimony on the hearing of objections to the abstract of estimate — Viewing premises.

Commissioners of estimate and apportionment of the city of New York may, but are not required to, allow landowners affected by the proceeding to produce further testimony as to the value of their property at the time fixed by the commissioners for the hearing of objections to their abstract of estimate.

-Such commissioners have a right to act upon information derived-in part froín a personal view of the premises.

Motion for an order confirming the report of the commissioners-of estimate and apportionment in above entitled proceeding.

John Whalen, Corporation Counsel (Chas. D. Olendorf, of’ counsel), for city.

Mulqueen *&*Mulqueen, Thomas S. Bassford, Gumbleton *&-*Hottenroth, Rufus L. Scott for landowners.

Freedman, J.

This motion is made for an order confirming the report of the commissioners of estimate and apportionment appointed in the above-entitled proceeding.

*649This proceeding had for its object the acquisition of title by the city of New York to certain lands on the easterly side of Third avenue, extending from One Hundred and Twenty-eighth street to One Hundred and Thirtieth street, and was instituted under the provisions of chapter 413 of the Laws of 1892, as amended by chapter 716 of the Laws of 1896.

The commissioners appointed herein took their oaths of office and the same were filed on the 12th day of November, 1897, and the title to the lands thus sought, vested in the city on that day. Thereafter the commissioners published the notice prescribed by law, requiring all parties interested in the real estate to be taken for the purposes of the intended improvement, or affected thereby, and having any claim or demand on account thereof, to present the same, etc.

And the persons so notified did appear and hearings were had and testimony taken, until all the owners and the city had been heard and had introduced such evidence as they desired. The commissioners took over 1,800 pages of testimony, extending over a period from January, 1898, until May, 1900. No limit was placed upon the number of witnesses to be called, either by the landowners or by the city, and both sides had ample opportunity to call as many witnesses as they choose.

In addition to taking this voluminous testimony, the commissioners themselves carefully examined the property under condemnation for the purpose of ascertaining its true value. I have read the briefs of counsel for the landowners submitted to me on this motion and the testimony referred to by them as tending to sustain their request that this proceeding be returned to the commissioners for further hearing. Much criticism has been made as to the competency of, and the reliability to be placed upon, the testimony of the expert witnesses given before the commissioners upon the question of the value of the several parcels of land and the value of the leases involved herein, each side claiming that its witnesses are entitled to and should be given more credit than those of the other side, and there is a wide difference of opinion as to such value, between the witnesses sworn, and it is evident from the amount of the awards given by the commissioners that they have not based their opinion of the damages awarded, solely upon the testimony of the witnesses offered by either side, but upon their own judgment as to the value of the property con*650demned, and that such judgment is a fair and just estimate and is an apparent medium between the excessive value placed thereon by the experts of the landowners and the inadequate values of the witnesses for the city.

That the commissioners had a right to act upon information derived, in part, from a personal view of the premises cannot be questioned, it is their province thus to acquire the necessary knowledge to enable them to intelligently make a just and equitable apportionment of damages, and their decision as to the amount thereof founded upon that method, in part at least, may not outweigh or be overthrown by the opinion of other witnesses in the absence of anything going to show misconduct or undue prejudice on their part:

After the taking of the testimony was concluded, the commissioners made and filed in the office of the bureau of street opem ings of the law department of the city of Few York their abstract of estimate and assessment, as required by law, and gave notice of such filing and also gave notice of the time when and place where, they would meet for the purpose of hearing any persons who might file objections thereto.

On the day fixed for the hearing upon such objections, two attorneys for certain landowners appeared and asked leave to introduce further testimony as to the value of the property represented by them.

This request was refused by the commissioners, and it is now claimed that this refusal was error, that those landowners were deprived of a right to be heard further upon the merits of the controversy, and that for that reason the report of the commissioners should be denied confirmation.

I fail to see the legality of this position, and I can find nothing in the act relative to the opening of streets, which act governs these proceedings, that requires the commissioners to take additional expert or opinion evidence at the time fixed by them for the hearing of objections filed against their abstract of estimate. That they may do so, is conceded by the city, but it seems to be purely within their discretionary powers, either, to take, or refuse to take, further testimony, and in the absence of proof tending to show any abuse of such powers the court should not intervene.

The Consolidation Act requires the commissioners to file their abstract of estimate and publish a notice thereof, and of the *651time and place where any one interested may 'file objections thereto, and of the time when and place where they will hear such objections. That contemplates merely a hearing upon the objections, not a retrial upon the merits.

If, upon such hearing, errors are pointed out requiring further testimony, or if additional evidence should be deemed essential by the commissioners to enable them to determine the true value of the property sought to be condemned, they undoubtedly have the right to order further hearings and the taking of more testimony.

If it had been made to appear to the court that the commissioners had been guilty of an abuse of their discretion in that regard, the report might be sent back for further consideration of the questions involved, but I have been unable to discover any such injurious action on their part; neither has it been made to appear that there has been any fraud or irregularity, or any erroneous principle adopted in arriving at their determination, or that the awards are grossly inadequate or excessive.

Ho grounds have, therefore, been shown for interference by this court. Matter of Brook Ave., 8 App. Div. 294; Matter of Boston Road, 27 Hun, 409; Matter of Com’rs of Central Park, 51 Barb. 277.

As before stated, the hearings covered a period of over two years, and no limit was placed upon the number or character of the witnesses to be called. Moreover, the commissioners (one learned in the law) it is undisputed are all men of large experience in real estate transactions, great familiarity with property in the vicinity of the lands condemned, of unbiased mind, disinterested, of known integrity, and are entitled to respect and confidence.

It is apparent that a new hearing would simply result in the introduction of more testimony from expert witnesses whose opinions would continue to show a wide divergence, and the awards made would then, as now, necessarily depend equally as much upon the personal judgment of the commissioners,, as upon such testimony, and all parties would be put to needless and unnecessary expense without compensating results. For the reasons stated the report of the commissioners must be confirmed.

Report of commissioners confirmed.