#### In the Matter of the Application of the City of New York, Respondent, to Acquire Certain Real Estate in the Towns of Carmel and Southeast, Putnam County, and Somers, Westchester County, New York, under Chapter 490 of the Laws of 1883, etc., for the Purpose of a Dam and Reservoir on Croton River and for the Purpose of Supplying the City of New York with an Increased Supply of Pure and Wholesome Water. (First Supplemental Proceeding, Parcel Nos. 47 and 69.) George Harold Brady and Concetta Butler, Appellants.

Second Department,

December 30, 1908.

Eminent domain—review of award — certificate of commissioners that they struck out improper evidence — appeal — errors not justifying reversal.

Where commissioners appointed to make awards on condemnation proceedings have personally viewed the premises, the mere fact that the awards were largely under the estimate of value given by the owner’s witnesses, and largely in excess of those of the condemnor, does not of itself require a reversal.

Where the commissioners, having reserved a motion to strike out evidence establishing the cost of reproducing buildings and having made their awards, thereafter all certify that before so doing they granted the motion to strike out and disregarded the testimony, the evidence must be regarded as having been eliminated before the awards were made.

In any event, even though the evidence was incompetent and was not stricken out, the Special Term cannot set aside the awards when there is nothing in the record to show that the evidence in any manner affected the action of the commissioners and the awards are supported by other competent evidence, including a personal view of the premises.

An award by commissioners will not be set aside unless it affirmatively appear that they acted upon an erroneous principle; it is not enough that they may have so acted.

Owing to the peculiar functions of such commissioners, combining those of court and jury, their award will not be set aside for the mere admission of improper testimony, unless it be shown to have affected the result and directly resulted in an unjust award.

Separate appeals by George Harold Brady and Ooncetta Butler from parts of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the *708county of Westchester on the 7th day of April, 1908, setting aside the awards and report of commissioners as to two parcels of land owned by the appellants and taken by the respondent for the purposes of a dam and reservoir on Croton river under the provisions of chapter 490 of the Laws of 1883, and amendatory and supplemental statutes, and ordering a new hearing before other commissioners.

*Henry R.*Barrett, for the appellants.

*H. T. Dykman [Francis Key Pendleton*with him on the brief], for the respondent.

Rich, J.:

Five witnesses were sworn before the commissioners by each side as to values. ¡No objection or exception to their evidence was taken. The award made for parcel ¡No. 69 was $40,490, which was $12,638 less than the average damage testified to by the appellants’ witnesses. The award made for parcel ¡No. 47 was $7,390, which was less by $5,118 than the average damages testified to by appellants’ witnesses. The commissioners had the benefit of their personal view and examination of the property, in addition to the oral testimony, and the fact that the awards made were largely under the average of the witnesses sworn by the appellants, and also largely in excess of the damages testified to by the respondent’s witnesses, does not, of itself, require the reversal of the award of the commissioners.

Upon the hearing the appellants called three witnesses, a carpenter, a mason and a plumber, for the purpose of proving the value of the buildings upon parcel ¡No. 69, and offered in evidence itemized statements made by them of the quantity and value of the different materials in such buildings. This evidence was objected to as being offered for the purpose of establishing the structural value or cost of reproducing the buildings. Ruling was reserved, and the evidence received subject to a motion to strike it out. Later counsel directed the attention of the commissioners to this reservation, and moved to strike the evidence out as incompetent, improper and immaterial. Decision was reserved on this motion for the consideration and ruling of the entire commission. The commissioners *709certify that they later granted this motion so far as the testimony related to values, and that in arriving at their conclusion they entirely disregarded such testimony and considered the realty as a whole, “ as real estate with the erections and constructions upon it.” This certificate was not made until after the report had been filed and their attention had been directed to the matter by counsel. It is contended by the respondent that this evidence was incompetent and influenced the result; that striking it out *“*after the report was made and filed was a nullity;” that the evidence remained in the case, and that it presents reversible error. *Matter of N. Y., Lackawamna & Western R. Co.*(29 Hun, 1) is cited to sustain this proposition. In that case it was held that the certificate of one of several commissioners, made after the filing of their report, of the rule adopted in estimating damages could not affect the validity of the report. The certificate under consideration is united in by all of the commissioners, and it does not show, as asserted, that the ruling was made “ after the report was made and filed,” but before. It is to the effect that at an executive meeting of the commissioners, held before the proceedings were completed, no stenographer being present, which may account for its not being, in the minutes, they considered the motion to strike the evidence out, which was granted. They had reserved the right to pass upon this question without objection by counsel for either party, and they did not consider the evidence thus stricken out. To this extent we think the certificate may be properly considered, and that the evidence objected to, upon the admission and effect of which this appeal is based, must be regarded as having been eliminated from the case before the awards were made, but if otherwise, and the evidence is, as claimed, incompetent, and in the case for our consideration, it affords no grounds for the action taken by the learned Special Term. There is nothing in the record showing that it in any manner affected the action of the commissioners, which is based upon competent evidence, including their personal inspection of the property, which is sufficient to sustain their finding ; and it is well settled that an award by commissioners will not be set aside unless it affirmatively appears that they acted upon an erroneous principle ; it is not enough that they may have so acted. *(Matter of*Thompson, 14 N. Y. St. Repr. 522.) They have pecul*710iar powers, combining both, those of a court and jury. It is for them to determine the weight to be given to evidence produced before them and the credibility of the witnesses sworn; they are to view the property for themselves and reach such conclusion as in their judgment is just and proper. Their report will not be reversed or awards set aside because of inconsistencies, or because their award may seem to an appellate court too large or too small, unless it is grossly inadequate or unequal. To warrant a reversal it must appear, not only that improper testimony was admitted, but that it affected the result and directly resulted in an award which is an injustice to the one party or the other. *(Matter of New York, W. S. & B. R. Co.,*37 Hun, 317; *Matter of N. Y., Lackawanna & Western R. Co.*v. *Arnot,*27 id. 151; *Matter of Newton,*45 N. Y. St. Repr. 18 ; *Matter of Buffalo & Geneva R. Co.,*37 id. 343 ; *Matter of N. Y. El. R. Co.,*12 N. Y. Supp. 858; *Matter of Boston Road,*27 Hun, 410; *Troy & Boston R. R. Co.*v. *Lee,*13 Barb. 169; *Matter of Commissioners of Central Park,*51 id. 277; *Matter of Norwood & Montreal R. R. Co.,*47 Hun, 489; *Matter of Daly*v. *Smith,*18 App. Div. 194; *Matter of Thompson,*121 N. Y. 277.)

The order must be reversed, with costs, and the award and report of the commissioners as to parcels 47 and 69 confirmed, with costs.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Order reversed, with cost's, and the award and report of the commissioners as to parcels 47 and 69 confirmed, with costs.