In re Bensel

Smith, P. J.:

Upon May 22, 1909, the commission was appointed which had jurisdiction of the claim in question. That commission was appointed upon a petition of the board of water supply of the city of New York, for the appointment thereof “to ascer: tain and appraise the compensation to be made to the owners of and all persons interested in the real estate laid down on said maps as proposed, to be taken or affected for the purposes indicated in said act, and to exercise and discharge all the powers and duties conferred upon commissioners of appraisal by said act or the acts amendatory thereof or relating thereto.-1 Thereafter and upon August 25, 1910, the claimants, Levi E. Dumond and Nellie Dumond, filed their claim. In their notice of claim it was stated that the claim did not include damages to claimants provided for under section 42 of chapter 724 of the Laws of 1905, as amended;* section 8 of chapter 725 of the Laws of 1905, or indirect damages provided by section 3 of chapter 723 of the Laws of 1905.† The claimants demanded $30,000 damages, together with expenses and disbursements, including compensation for witnesses, allowance for counsel fees of five per cent of the amount of the award made for said real estate and costs. This claim was tried before the commission, and during its trial the following colloquy occurred: “By Mr. Slosson: Q. I want you to tell the Commission, as near as you can, what have been the cash receipts from your business, year by year, for the last five years. I ask this question, not for the purpose of proving damages to the business, but merely for the purpose of showing the amount of business that has been carried on at this place. Mr. Grogan: I object to that as incompetent on the further ground that the Commission has no jurisdiction to go into that. Mr. Slosson: I don’t ask it for the purpose of proving the value of the business. The Chairman: Why do you ask it ? Mr. Slosson: Simply to show the amount of business which was done here. Mr. Grogan: I object to it on the further ground that the value of real estate does not depend on the amount of business done at that particular place. The Chairman: Objection sustained. Mr. Slosson: Exception. Mr. Grogan: If the Court please, I desire to renew my motion to strike out the testimony of Mr. Carl, Frank Matthews, Delancey Matthews and Mr. Hasbrouck, on the ground that any of the witnesses were not shown to be qualified to testify to the value of real estate at West Hurley, and on the further ground that all of the witnesses have admitted that in making up the value of the real estate they were guided entirely hy estimating what the profits would be by a successful business man, and all of them have admitted on cross-examination that they would not be guided by what the actual cost of the buildings were or what the market value of the real estate in that community has been or was at the time the city acquired title. The Chairman: I have noted the peculiar features of their testimony, but I think their evidence has some value upon the question of the. value of this property, and the motion is denied. Mr. Grogan: Exception.”

After the trial before the commission the report of the commissioners was duly made, and contained this recital: “ The amount ascertained and determined by us as aforesaid to be paid to the owners of and all persons interested in the said land for the acquisition of the fee of the premises designated on said map as Parcel No. 916, and for all damages sustained or which may be sustained by them by reason of the acquisition, use and occupation of the said fee for the purposes indicated in said act, is the sum of fourteen thousand dollars.” Upon motion of the claimants this award and appraisal were confirmed by the Special Term by the order from which this appeal is taken. In that order is included what has been called the “ business proviso.”

That is a clause provaddng: that the c®B¿ter shouild. aiot he c©nstrued. as precluding the above-mentioned-owner from presenting ©r prosecuting any'daim that he might .have for damages • for'the «decrease in value of .any established, ¡business -'owned or carried .on by him, and that it should not constitute a bar to the enforcement -of such (claim,, iff any such ©laim-he had,, and that the orderishould not he construed :as- an -adjudication or ©pinion.as- to the .evidence. ®f any such claim, it was further provided in. the order that expenses: and disbursements to the amount: ©E. •■S¡¡5241.'®4, including reasonable (compensation for' witnesses, should be .'allowed, and ■'$£.6@:E©¡e counsel fee.,

There, has been no- appeal from the report or appraisal of thecommisssioners, and this:- --appeal raises: .no- question ;as to -the amount or validity of that .award. Two-(questions: only -are raised by the .‘appellant. UPvrst, ¡that theordershould notihave contained this- so-called, business proviso..:” .Secondly, that the order should not have .adjudicated.the costs (and disbursements- without a recommendation toy the. commissioners pursuant to sections 13 and 32 of the Water'Supply Act.. (See Laws. 190.5,, (chap. £2.4, .§ 13, as amd, toy Laws of 190.6., ckapv 314;. Id. § 32..)-

Upon the 'first question the- :rights«3$:the parties, ihave toeen much, -clarified toy the (©pinion of the. --Oourt ®f Appeals ip People ex rel. Burhans v. City of New York (198 N. Y. 439). .fe that .ease the -city had proceeded io> .condemn the-real estate -of one Lasher, and compensation Shad been .adjudicated therefor. Upon the trial before the commissioners the city had made the. contention, that the commissioners had ho jurisdiction to determine the damage to any established business and that icontentiom had been .-sustained toy the commissioners., Thereafter Lasher sought to mandamus the city to1 - commence proceedings to determine; the loss: to her’ business under -the act.. That mandamus was granted at Special Term and the-order granting the same was affirmed toy the Appellate Divisio^‘(People ex rel. Lasher v. City of New York, 134 App. Div. 75) and toy the-Qountof Appeals, judge Wérrer, among: other things, in writing: for the court,, says:: “We - think the statutes under-consideration contemplate the determination of all-such, claims in the original proceedings instituted to. acquire lands upon, which such business was carried cm,, and that is the practice which the claimant herein sought to invoke. The commissioners should have taken her evidence as to damages and determined; her claim in the proceedings to- acquire the land upon which her business had been carried on. As that right was denied to- her, she will he without remedy unless she can compel the city authorities to institute a separate proceeding for the determination of her claim. The attitude of the appellants has made that the law of this proceeding'. Such ' compulsion can only be enforced by mandamus,, and the relator is, ■ therefore,, clearly entitled to the writ.”

In the case cited the question arose after the- award for land damage had been made and confirmed.. Here the question is raised upon the application to confirm the award before the proceeding has been closed.

The awamd of the commissioners is- “ for the acquisition of the fee of the premises designated on saidmap as Parcel Ho. 916, and for all damages sustained or which may he sustained by them by reason of the acquisition, use and occupation: of the said fee for the purposes indicated in said act.” TMs award is in terms broad enough to include damages under section 42’of the act (as amid, by Laws of: 1906,, chap. 314) as well as for the fee. If then this award is to be construed and its effect limited,, it should, I think, be limited by the- commission itself and not by the court. This is especiaZy so in the ease at bar where there is much evidence of at least doubtful competency if a claim for land damage only was being investigated. If it be suggested that this court may send the case back to the commission for a further report, it would seem more proper in view of the nature of the proof offered to sustain the claim that the commission should be instructed to take evidence of aZ of the damages, direct and indirect, which foZow from the acquisition of this land by the city, and that all of such damages be included in one award.

As to the other question raised upon the- aZowance of witness fees and counsel fee to the claimants, we think the appellants have failed to establish their claim. By section 13 of the act (Laws of 1905, chap.. 724, as amd. by Laws of 1906, chap. 314) it is provided that the commissioners of appraisal may also recommend such' sums, if any, as shall seem to them proper to b.e allowed to parties appearing in the proceeding as expenses and disbursements, including reasonable compensation for witnesses. It is provided in section 32: “ Such fees and expenses [probably including these fees and expenses in question] shall not be paid until they have been taxed before a justice of the Supreme Court in the judicial district in which the lands or some part thereof are situated upon eight days notice to the corporation counsel of the city of New York.” The failure of the commissioners to recommend an allowance of costs and counsel fee, as provided by section 13, clearly does not deprive the court of the power to award such costs upon the confirmation of the report. The appellant has not included in the record the notice of motion to confirm the report. In the absence of a motion before the Special Term to correct the order made we may assume that such notice of motion gave to the corporation counsel the notice required by the statute and authorizes the judge presiding at Special Term to tax the witness fees and counsel fee at the amounts specified in the order. From these views the conclusion follows that the so-called “business proviso” should be stricken from the order. If claimants elect to abandon further claims for indirect damages and so stipulate, the order as amended may stand. ' If such stipulation be not filed the matter is referred back to the same commission to take evidence as to all damages, direct and indirect, which have resulted from the acquisition by, the city of the land in question and to include in its report compensation therefor.

All concurred, except Betts, J., dissenting, in opinion.

* Amd. by Laws of 1906, chap. 314.— [Rep.

† Amd. by Laws of 1906, chap. 415; revised by State Boards and Commissions Law (Consol. Laws, chap. 64; Laws of 1909, chap. 56), § 7, as amd. by Laws of 1910, chap. 385. See, also, Conservation Law (Consol. Laws, chap. '65; Laws of 1911, chap. 647), § 533.— [Rep.