Opinion
December 30, 1908.
Frederic S. Barnum, for the appellants.
H.T. Dykman [ Francis Key Pendleton, with him on the brief], for the respondent.
Upon the hearing the commissioners permitted evidence to be given over respondent's objection and exception by an expert architect, one Waite, of the structural value or cost of reproduction of the buildings upon the land. This does not require a reversal of the awards if they are supported by other competent evidence, and the incompetent evidence is not shown affirmatively to have led the commissioners to adopt erroneous principles in reaching their conclusions. ( Matter of Daly v. Smith, 18 App. Div. 194; Village of Port Henry v. Kidder, 39 id. 640; Harlem River P.R.R. Co. v. Reynolds, 50 id. 575; Matter of Grade Crossing Commissioners, 52 id. 122; affd. without opinion, 164 N.Y. 575; Matter of Brooklyn Union Elevated R.R. Co., 113 App. Div. 817; 7 Abb. Cyc. Dig. 361; 15 id. 1453.) The appellants proved by three witnesses an average value of parcel No. 27 and consequent damage of $2,663.33, and the respondent by a like number of witnesses an average value (and damage) of $1,166.66. The award was $1,940, which was $723.33 less than the average value placed upon it by appellants' witnesses, and $773.34 more than its average value as testified to by respondent's witnesses. The average value of parcel No. 28 was testified by appellants' witnesses to be $3,433.33, and by respondent's witnesses to be $2,383.33. The award was $3,090, which was $343.33 less than the average value placed upon it by appellants' witnesses, and $706.67 more than its average value as testified to by the witnesses for the respondent. The evidence upon these values was competent. In addition to the oral evidence the commissioners had before them accurate photographs of the property and made a personal examination of it. One of the witnesses for the city testified that, with the exception of an interval of three years, he had devoted the greater part of his time for eleven years to the examination of property and qualifying himself to be a witness for the city, and one of the others that he had been a witness for the city since 1893. While they placed the value of the property taken much lower than that testified to by the witnesses for the appellants, the commissioners were not bound by their conclusions; they were the judges of their credibility, and the weight to be given their evidence. They had means of determining the proper and just compensation to be awarded appellants which this court does not possess, and which cannot be returned to it, that is, the aid of a personal examination. The awards are not excessive, and there is no evidence contained in the record which would justify us in holding either that the commissioners adopted erroneous principles in determining the amount of their awards as to the two parcels owned by the appellants, or that the incompetent evidence in any manner affected the result. It is not sufficient that the commissioners may have acted upon an erroneous principle. To justify a reversal it must appear affirmatively that they did so act. ( Matter of Thompson, 14 N.Y. St. Repr. 522.)
The order must be reversed, with costs, and the awards and report of the commissioners as to parcels Nos. 27 and 28 confirmed, with costs.
JENKS, HOOKER, GAYNOR and MILLER, JJ., concurred.
Order reversed, with costs, and the awards and report of the commissioners as to parcels Nos. 27 and 28 confirmed, with costs.