#### In the Matter of Acquiring Title to Graham Avenue from Jackson Avenue to Vernon Avenue in the First Ward, Borough of Queens, City of New York.

(Supreme Court, Kings Special Term,

November, 1910.)

Eminent domain — Condemnation proceedings — Hearing of parties — Opening case for further proof.

Where, in a proceeding to condemn land for street purposes, a property owner attends and proves his title but offers no evidence of the amount of bis damage, relying upon the proof offered by *382other owners, he is not entitled as a matter of right to a new trial of the question of the amount of his damage upon an objection taken to the preliminary report of the commissioners; and their refusal to receive his evidence on the question of value is not an abuse of discretion.

Motion to compel commissioners of estimate and assessment to hear testimony.

A. C. & F. W. hottenroth, for certain property owners for the motion.

Archibald R. Watson, Corporation Counsel, in opposition.

Blackmar, J.

The question presented is whether a property owner, dissatisfied with the award made by the commissioners and who has filed objections to the preliminary abstract of their report, has the right to introduce further evidence on the value of his property taken. In this case the property owner knew of the proceeding, attended and proved his title, but offered no evidence of the amount of his damages, evidently preferring to rely upon the report of the commissioners, as influenced by the evidence of other property owners, as the alternative to the further expense of procuring expert testimony. Being dissatisfied with the amount of the award, as shown by the preliminary abstract, he now for the first time seeks to introduce evidence as to the value of his property taken in the proceeding. The commissioners refused to receive the evidence, and an appeal is made to the court for an order compelling them to do so.

I find nothing in the law which provides that the commissioners can be compelled to retry an issue which they have already tried and upon which they have rendered a decision upon due notice to the parties. Parties have the right to object; and the commissioners probably have power, in the exercise of their discretion, to take further evidence. It is possible that, on the question of the assessment, upon which the property owner has not before been heard, he may have the right to introduce evidence; but I do not think that a property owner, as matter of right, can compel the commissioners to retry the issue as to the value of his propérty.

*383Heitlier do I find in this case that the commissioners have abused their discretion. The property owner undoubtedly thought that he could safely trust his interests with the commissioners, reasoning that the evidence introduced by other property owners and the necessity for uniformity of award would sufficiently protect his rights. He deliberately elected not to introduce evidence; and, under these circumstances, I do not think that the commissioners should be required to hold up this whole proceeding for the purpose of receiving evidence which the property owner had full opportunity to introduce at the proper time. If the Legislature had intended that any property owner who filed objections should be entitled to a new trial, this intention would have found plain expression on the - face of the statute. A property owner may file objections, he may have a hearing on these objections and, in the discretion of the commissioners, he may introduce further evidence ; but I think that this is all.

I decide that a property owner is not- entitled, as a matter of right, to a new trial of the amount of his damages upon an objection taken to the preliminary, report, and that in this case the commissioners have not abused their discretion in refusing to receive his evidence. Matter of City of New York, 33 Misc. Rep. 648. I find nothing contrary to this view in the decision of the court in Matter of Mayor, etc., 95 App. Div. 514.

Motion denied, with costs.