(dissenting):
I dissent. The form of the petition here is the petition that is. used in the condemnation proceedings by the board of water supply of the city of New York to condemn the. fee of the real estate. '(See Matter of Simmons, 58 Misc. Rep. 581, 584, where practically the contents of a petition similar to the one used in this case are set forth.) It seeks to condemn the fee of the real estate only.
' ' The order appointing the commissioners recites that it appears. *559that the application of the real estate described in said petition is necessary for the purposes of providing an additional supply of pure and wholesome water for the city of New York and for the construction, operation and maintenance of the reservoir, aqueduct, culverts, tunnels and various appurtenances as set forth in said petition. The commissioners of appraisal were appointed “ Commissioners of Appraisal to ascertain and appraise the compensation to be made to the owners of and all persons interested in the real estate laid down on said map in this proceeding, * * * as proposed to be taken or affected for the purposes indicated in said act.”
The order of confirmation follows the petition. The parcel is described as being taken in fee and the amount allowed is for all damages sustained or which may be sustained by Levi E. Dumond and Nellie Dumond, his wife, as the owners of said real estate as tenants by the entirety by reason of the acquisition, use and occupation of the said fee for the purposes indicated in said act.
The claimants’ claim distinctly alleges that it does not include damages for loss of business, specifically mentioning the chapter and section under which such claims can arise and be proven.
The commissioners took testimony as to the market value of the real estate offered by the claimants. They declined to take testimony offered as to the cash receipts from Mr. Dumond’s business for five years, although it was stated that it was not offered for the purpose of proving damages to the business. Not one word of testimony was given by the claimants as to who was the owner of the business conducted on said real estate on June 1, 1905, nor who was the owner of it at the time the case was tried, although it was made inferentially to appear, brought out by the city, that Levi Dumond was at the time of the trial the owner of the store business conducted there. Not one word of testimony was given by the city as to the value of the business to whomever it might "belong, nor hny evidence whatever towards defeating a claim for business which was not presented and was not being tried, jet the citj asks here to have this court hold that the $14,000 awarded to these two claimants included not. onlj the damages *560for taking the fee of. the real estate which was, sought, but also included damages- to* the owner or owners- of an established business on June 1,, 1905) directly or indirectLy decreased, in value by reason, of the acquiring of land, by the city of New York in favor of some person, or persons who were unknown to the commission, .and* to the city of New York, and who had asserted no claim to any -such-decrease in value, or. -any damages for loss of business; This- is sought to be done, by the city on the strength of some-statements-in- an opinion: in People ex rel. Burhans v. City of New York (198 N. Y. 439) in an action in which neither the original petition for acquiring the fee of the real estate, the order appointing- the commissioners), the report of the commissioners) nor the order of confirmation thereof was- before the-Gourt of Appeals. The decision granted hy the court in that case directed the city of New York to institute proceedings- in which plaintiffs’ intestate’s claim against, the city of New York, for' decrease or damage to-her. business carried on in the Ashokan region upon lands theretofore condemned hy the- city of New York could be- determined, it appearing that, the city either by its original petition to condemn the fee -or order thereon or-' by neglect, or otherwise had failed to provide a proceeding in which said Tina R Lasher could have determined such damages-;. It further appeared, in that case- that an. unsuccessful attempt had. been made by Tina B. Lasher to agree with the. city as-to the-amount of her damages for her business being directly car indirectly decreased, in-value by reason ctf; the- acquiring -of. the land by the city of New York for an. additional water supply, which attempt had not been made b^Tima B. Lasher at the time the commission refused to take her testimony for the purpose of. ascertaining and determining1 suck damages- before the commission. That opinion must he- construed in the light of what was-before that court at that time.
In my opinion that ease is no authority whatever for the present contention -of the city ..
1 think that the award here by this commission was simply and solely a real estate award and that only.. It may well be that- the commissioners awarded more for this- property than this court would do, hut the award was not so excessive as to *561justify the court in reversing the same. (See Matter of Board of Water Commissioners, 71 App. Div. 544; Matter of Manhattan R. Co. v. Comstock, 74 id. 341; Matter of Mayor [Cromwell Avenue], 95 id. 514; Matter of City of New York, [Croton River Dam], 129 id. 711.)
The two proceedings, L e., that for the taking of the fee of the real estate, and that for determining the damages to any established business directly or indirectly decreased in value by reason of the acquiring of land by the city of New York, are entirely separate and distinct proceedings: 1. For* the taking of the fee of the real estate is provided for by section "7 of chapter 724 of the Laws of 1905, based on the initiative of the board of water supply by its petition. Nothing, need or can be done by the landowner or claimant before the board of water supply acts. 2. For procedure as to ascertaining damages to. or for an owner of an established business decreased in value, see section 42 of chapter 724 of the Laws of 1905*, as amended by chapter 3.14 of the-Laws of 1.906, by which it wiil.be seen that before a recovery cam be had for any such, business damages an agreement must be attempted between such claimant, and the board of water supply of the city of New York, and only in the event that such an agreement cannot be made1 can such a proceeding to determine the damages- to such business- be successfully prosecuted.. One-, is initiated solely by the city to condemn and take the fee of the real estate, and in the other there must be an attempt by either the- owner of the business or the. board of water supply to reach an agreement, before the board of water supply can procure the appointment of commissioners to fix the damages for the decrease in value of an established business.
The term “real estate” is defined in- said chapter 724of the Laws of 1905, as follows (§ 25): “ The term real estate as used in this act shall be construed to signify and embrace all uplands, lands under water, the- waters of any lake, pond or stream, all water rights or privileges, and any and ail easements and incorporated {sic) hereditaments and every estate,, interest and right, legal and equitable, in land or water, including terms for years.,, and liens thereon by way of ■ judgment, mortgages or other*562wise, and also .all claims for damage to such real estate.” It will be seen that “decrease in value of any established business ” is not real estate, notwithstanding the present claim of the city of New York.
The Lasher Case (supra) was a case for the decrease in value of a boarding-house business, a business very largely made up of boarders obtained from the cities of New York and Brooklyn. So far as disclosed by the evidence submitted to the Court- of Appeals in that case, such boarders were for the most part non-residents of the Ashokan district.
If any one shall ultimately present a claim for damages for the loss or decrease in value of an established business on this Dumond property, it will probably appear that one of the principal items of damage urged is the large number of people who have been forced to leave this region by the condemnation proceedings of the city of New York; customers taken away from the store and necessarily seeking new locations, widely scattered. The nature of the testimony is greatly different, in my opinion, from that which would need to be presented in the Lasher boarding-house business case. For that reason, among others, I think 198 New York, 439, has no application to the case now before this court.
The city is disturbed because the court at the request of claimants, through an apparent excess of caution, had inserted in the order of confirmation herein the following clause:
“ Ordered^ that nothing herein contained shall be construed as precluding the above mentioned owner of the herein above described parcel of real estate, or any of them from presenting and prosecuting any claim either of them or any of them may have for damages for the decrease in value of any established business owned or carried on by either of them or any of them on the first day of June, 1905, which may be directly or indirectly decreased in value by reason of the acquisition by the City of' New York of any of the lands herein described and belonging to either of them or any of them, nor shall it constitute a bar to the enforcement of such claim if any claim either of them or any of them had; and nothing herein contained shall be construed as an admission by the City of New York that any such claim for damages to business exists nor as an *563adjudication or opinion of this court as to the evidence of any such claim.”
So far as I can see this is the only thing in the case now before us that might lead the board of water supply to think that one or both of these owners of this real estate might have a claim for decrease in value of an established business.
I assume the claimants requested the court to insert this clause because no attempt had been made in this case to prove damages for the decrease in value of any established business. This would seem to me' to be an eminently proper clause and one that was harmless to the board of water supply or the city of New York. From the present attitude of the city it would seem that the claimants were well advised when they inserted such a clause on account of the present entire change of front on the part of the board of water supply or the city of New York. All the evidence that was introduced in this case as to the value of the business at that store, whoever might assert a claim thereto, was brought into the case by the cross-examination of claimants’ witnesses by the city, and I cannot see that the claimants were called upon to object thereto. In other words, the city set up before the commission and this court an unstable man of straw and is now making a great show of strength knocking him over.
The commissioners viewed the premises here. Two. of them live within a few miles of the property. One of them is a merchant doing a somewhat similar business to that carried on by Mr. Dumond, less than twenty miles distant from his store, a very well qualified man to pass upon the value of this real estate with or without testimony. Another is a . very capable lawyer, familiar with condemnation proceedings, living within forty miles of these premises and familiar with this class of property.
Perhaps a very good reason for the city of New York declining in the first instance to provide in their petition and in the order appointing the original commissioners for the ascertainment of damages for the decrease in the value of an established business was the apparent fact that the city was not anxious to encourage the presentation of claims of that kind, and in the absence of an attempt on the part of some person or per*564sons to- claim, these damages the- city was not, likely t®> he- ,a .volunteer nor,to encourage them to-present such claims, nor to attempt to. agree with them upon- the. amount of such damages if none- were- claimed-. It was- the- claim of the city of Hew York until recently that, such damages, should ha ascertained and determined hy a-, separate commission:,, and In fact a- commission has- been in. session each month £©r: nearly á yea-r,, and is now in session, appointed on the .application of. the- city of Hew York solely to hear such, claims for-damages to an- established business;,", and the claims being tried wei-e- all presented hy ..persons whose: real estate- had been theretofore -condemned and taken by the city of Hew York.
I think nothing, has been presented here, to- show that, the commissioners adopted, a. wrong, theory as to- damages^, or that the- award is excessive, or sufficiently so> to .justify its. reversal,, or that anything else- was included in the- award than the market value o£-the-real-estate taken..
I agree with the opimion-of Presiding JusticeSMiua as to- the costs and -.disbursements -granted herein.
I, therefore^ think.'that, the- order, appealed from should he affirmed, with, costs, and disbursements, to., -the claimants; ;
Order modified as per opinion.