§ 3370. Proceedings of commissioners. The commissioners shall take and subscribe the constitutional oath of office. Any of them may issue subpoenas and administer oaths to witnesses; a majority of them may adjourn the proceeding before them, from time to time, in their discretion. Whenever they meet, except by appointment of the court or pursuant to adjourn ment, they shall cause at least eight days notice of such meeting to be given to the defendants who have appeared, or their agents or attorneys. They shall view the premises described in the petition, and hear the proofs and allegations of the parties, and reduce the testimony taken by them, if any, to writing, and after the testimony in each case is closed, they, or a majority of them, all being present, shall, without unnecessary delay ascertain and determine the compensation which ought justly to be inade by the plaintiff to the owners of the property appraised by them; and, in fixing the amount of such compensation, they shall not make any allowance or deduction on account of any real or supposed benefits which the owners may derive from the public use, for which the property is to be taken, or the construction of any proposed improvement connected with such public use. But in case the plaintiff is a railroad corporation and such real property shall belong to any other railroad corporation, the commissioners on fixing the amount of such compensation, shall fix the same at its fair value for railroad purposes. They shall make a report of their proceedings to the supreme court with the minutes of the testimony taken by them, if any; and they shall each be entitled to six dollars for services, for every day they are actually engaged in the performance of their duties, and their necessary expenses, to be paid by the plaintiff.

The commissioners have no power to make any awards for the loss of an established business located on the land taken, nor for machinery thereon as su h, though an allowance for depreciation of its value by removal is proper. Matter of Department of Public Tarks, 53 Hun, 280.

It is not error for the commissioners to receive and act upon testimony as to the value of the property for park purposes or villa sites. Ib.

The corporation acquires an absolute right to the lands divested of any inchoate right of dower existing in the wife. Moore v. The Mayor of New York, 8 N. Y., 110.

The commissioners should determine the compensation to be made to a widow who has dower or life estate in lands taken. Matter of William Street, 19 Wend., 678, and also the compensation to be made to the mortgagee. Matter of John Street, Ib., 659.

The true inquiry is, what is the fair marketable value of the whole property; what will be the fair marketable value of the property not taken? The difference is the amount of the damages. Matier of N. Y. & W. R. R. Co., 27 Hun, 151.

An appraisal will not be set aside as excessive unless the excess is plain and palpable on the evidence. Matter of L. & W. R. R. Co., 27 Hun, 116.

The opinions of witnesses that the railroads will frighten horses, or the necessity of deviating the line of a turnpike, or the cost of diversion or that a bridge ought to be built, or the amount of damages a turnpike company will sustain by reason of the crossing of its road, are said to be inadmissible. Troy & B. R. R. Co. v. Northern Turnpike Co., 16 Barb., 100. In Trustees of College Point v. Dennett, 5 T. & C., 217, it was held upon an appraisal of a pond that the measure of damages was not limited to its use as a mill or ice-pond, but the owner was entitled to receive its value for any use.

The commissioners must appraise the land at its actual value; the cannot make a reservation of easements and privileges to the owner. Hill v. M. & H. R. R. (o., 7 N. Y., 152. But see, however, Ex parte H. C. & R. R. Co., 65 How., 133, where it is held that a company may petition for the appraisement only of the land required for its road.

It is competent to show, where lands is taken for a specific use, as a railroad, that the land not taken is depreciated in value by the use of the land taken and if that depreciation consists in the imposition of expense upon the owner of such lands, what that expense will be. Matter of Bloomfield, etc., Gas L. Co. v. Calkins, 1 T. & C., 549.

The owner should be awarded the market price of the land aiready taken, and in addition thereto the depreciation in the market value of the lands remaining, as compared with their

former market value. Matter of N. Y., W. S. & B. R. R.,, 29 Hun, 609; to the same effect, Matter of N. Y., W. S. & B. R. R. Co., 35 Hun, 260.

It is the duty of the commissioners to hear any and all evidence which would be competent in a court of law on similar questions. hoch. & Syr. R. R. Co. v. Budlung, 6 How., 467.

They are controlled by the established rules of evidence. Troy & B. R. R. Co. v. Northern Turnpike Co., 16 Barb., 100; to the same effect, Matter of Utica & C. R. R. Co., 56 Barb., 456.

In proceedings by a railroad corporation to acquire a right to lay its tracks in a street or highway, the fee of which is in the owner of the adjoining land, the proper compensation is first, the fu.1 value of the land taken; second, a fair and adequate compensation for all the injury the owner has sustained and will sustain by the making of the road over his land. Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423.

The amount of damages to be awarded to the tenant, is the amount which the rental value exceeds the rent reserved. Matter of the City of Buffalo, 1 Sheldon, 408.

The order in which the commissioners shall proceed is a matter left entirely in their discretion. Albany Northern, etc., R. R. Co. v. Lansing, 16 Barb., 68.

The party whose land is taken and who claims damages therefor, has the right to the opening and closing argument in the proceedings. Matter of N. Y., L. & W. R. R. Co., 33 Hun, 148; affirmed without opinion 93 N. Y., 664. An error in the admission of evidence is not commissioners that it did not affect the report. Hun, 1.

cured by the certificate of one of the Matter of N. Y., L. & W. R. R. Co., 29

Errors occurring in the report of testimony are subject to correction by such commission. ers, as a proper judicial function, and within their province only. N. Y., W S. & B. R. R. Co. v. Judson, 33 Hun, 293.

Loss of business profits and good will are not substantial grounds for damages, nor are they to be considered in estimating the injury caused by the taking of land. Troy & B. R. R. Co. v. Northern Turnpike Co., 16 Barb., 100; to the same effect, N. Y., W. S. & B. R. R. C. v. Cosack, 35 Hun, 633.

When land is taken, inconveniences from noise, smoke, etc., may be taken into consideration in estimating depreciation of balance. Brooklyn Park Com. v. Arms rong, 45 N. Y., 234.

In estimating the damages to which a lessee of premises used for a business purpose is entitled, the commissioners should consider the injury to the property as a whole; the difference in value of the leasehold interest before and after the land is taken; but the willingness of the lessor to lease another piece of land su table for the same purpose is not admissible. N. Y., W. S. & B. R. R. Co. v. Bell, 28 Hun, 426.

§ 3371. Confirming or setting aside report; deposit when payment.Upon filing the report of the commissioners, any party may move for its confirmation at a special term, held in the district where the property or some part of it is situated, upon notice to the other parties who have appeared, and upon such motion, the court may confirm the report, or may set it aside for irregularity, or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insufficient. If the report is set aside, the court may direct a rehearing before the same commissioners, or may appoint new commissioners for that purpose, and the proceedings upon such rehearing shall be conducted in the manner prescribed for the original hearing, and the same proceedings shall be had for the confirmation of the second report, as are herein prescribed for the confirmation of the first report. If the report, is confirmed the court shall enter a final order in the proceeding, directing that compensation shall be made to the owners of the property, pursuant to the determination of the commissioners, and that upon Payment of such compensation, the plaintiff shall be entitled to enter into the possession of the property condemned, and take and hold it for the public use specified in the judgment. Deposit of the money to the credit of, or payable to the order of the owner, pursuant to the direction of the court, shall be deemed a payment within the provisions of this title.

No title is acquired under proceedings to condemn lands for public use until the confirma ation of the report of commissioners appointed to assess the damages for the taking thereof. Matter of Common Council of Brooklyn, 5 Hun, 175.

It is to late to raise objections; such as, the petition is not properly verified, or that it does not appear by the petition that the company has been unable to agree with the owner of the right of way for the purchase, etc., on motion for confirmation of the commissioner's report. N. Y. & Erie Ry. Co. v. Corey, 5 How., 177.

The supreme court will not set aside an award for every technical error, where no injustice appears to have been done. N. Y. Central R. R. R. Co. v. Marvin, 11 N. Y., 276, citing Troy & Boston R. Co. v. N. P. Co., 16 Barb., 100.

The court will not disturb an appraisal for technical errors, or unless the commissioners have clearly gone astray and disregarded legal principles. Matter of N. Y. L. & W. R. R. Co. v. Arnott, 27 Hun, 151; to the same effect N. Y., W. S. & B. R. R. Co. v. Gennet, 37 Hun, 317.

Where the petitioner has fairly made out a case establishing that the premises are necessary for its use. and the company has acted in good faith and exercised a reasonable discretion, the court. will not interfere. N. Y., L. & W. R. R. Co. v. Union Steamboat Co., 35 Hun, 220.

Where the commissioners awarded much less than the value of the property taken, according to the testimony of every witness pnt upon the stand, it was held an arbitrary excrc.se of power not justified by law. N. Y., W S. & B. R. Co. v. Yates, 18 Week. Dig., 272.

An order of court confirming the report of commissioners of appraisement of damages to owners for lands taken, will not give validity to proceedings void for want of jurisdiction. Matter of Carlton St., 16 Hun, 497.

In case commissioners have filed their report, their power of amendment is gone, and a subsequent report has no validity. People ex rel. Mann v. Mott, 60 N. Y., 649.

The commissioners, upon application and order of court, may amend or correct their report so as to conform it to the state of facts as they exist. But they have no right at the time of such correction to hear proofs by claimants as to damages. N. Y & Erie R. R. Co. v. Corey, 5 How., 177.

Where there has been a succession of appraisals in the same county, one report may em brace all the different parcels. Toy & Rutland R. R. Co. v. Cleveland, 6 How., 238.

The report may be set aside where it appears that the commissioners had talked privately with a person from whom they obtained information discrediting claimant's testimony, and the award to him was greatly inadequate, and that his neglect to oppose the confirmation of the report arose from neglect or misconduct of his attorney. Matter of N. Y. C. R. R. Co., 5 Hun, 105; to the same effect Visscher v, H. R. R. R. Co., 15 Barb., 37.

The default of an owner upon the hearing before commissioners may be excused by the supreme court on motion to confirm the report, and the report set aside and a new hearing directed. Matter of N. Y. & L. R. R. Co., 93 N. Y., 385.

Upon the application to confirm a repot, a commissioner who has signed such report will not be allowed to stultify himself by an affidavit that he signed it without reading it or hearing it read. Rochester & Genesee R. R. Co. v. Beckwith, 10 How., 1C8.

The court must act solely on the report of the commissioners, and affidavits cannot be used to impeach or contradict it. The report must show that an error has been committed, or that injustice has been done, to enable the court to reverse or set aside the proceedings. Rondout & Oswego K. R. Co. v. Field, 38 How., 187.

Where the parties have agreed as to the principles on which the appraisal is to be conducted, the court cannot interfere. In re N. Y, L. & W. R. R. Co., 102 N. Y., 704.

The right of the mortgagee of lands taken in condemnation proceedings to the amount of awards made to him as mortgagee, is not taken away by his taking judgment in foreclosure without any abatement on account of the awards. Rodman v. City of Buffalo, 15 N. Y. State Rep., 583.

The court will not review the judgment of the commissioners upon the facts, except in cases in which a gross inequality of values is developed, or the appraisal is made upon a wrong principle. Matter of Mayor, etc., of N. Y., 99 Ñ. Y., 569; aff'g 34 Hun, 441.

3372. Offer to compromise; amount of costs; additional allowance. In all cases where the owner is a resident and not under legal disability to convey title to real property the plaintiff before service of his petition and notice, may make a written offer to purchase the property at a specified price, which must within ten days thereafter be filed in the office of the clerk of the county where the property is situated; and which can not be given in

evidence before the commissioners, or considered by them. The owner may at the time of the presentation of the petition, or at any time previously, serve notice in writing of the acceptance of plaintiff's offer, and thereupon the plaintiff may, upon filing the petition, with proof of the making of the offer and its acceptance, enter an order that upon payment of the compensation agreed upon, he may enter into possession of the real property described in the peti tion, and take and hold it for the public use therein specified. If the offer is not accepted, and the compensation awarded by the commissioners does not exceed the amount of the offer with interest from the time it was made, no costs shall be allowed to either party. If the compensation awarded shail exceed the amount of the offer with interest from the time it was made, or if no offer was made, the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding, to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the supreme court, including the allowances for proceedings before and after notice of trial and the court may also grant an additional allowance of costs, not exceeding five percentum upon the amount awarded. The court shall also direct in the final order what sum shall be paid to the general or special guardian, or committee or trustee of an infant, idiot, lunatic or habitual drunkard, or to an attorney appointed by the court to attend to the interests of any defendant upon whom other than personal service of the petition and notice may have been made, and who has not appeared, for costs, expenses and counsel fees, and by whom or out of what fund the same shall be paid. If a trial has been had, and ail the issues determined in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering the costs of such trial caused by the interposition of the unsuccessful defense, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the supreme court.

As to offer to purchase property at a specified price and acceptance of same, see §§ 736 to 740, Code of Civil Procedure, both inclusive.

§ 3373. Judgment, how enforced; when to deliver possession of premises, and when writ of assistance to issue. Upon the entry of the final order, the same shall be attached to the judgment roll in the proceeding, and the amount directed to be paid, either as compensation to the owners, or for the costs or expenses of the proceeding, shall be docketed as a judgment against the person who is directed to pay the same, and it shall have all the force and effect of a money judgment in an action in the supreme court, and collection thereof may be enforced by execution and by the same proceedings as judgments for the recovery of money in the supreme court may be enforced under the provisions of this act. When payment of the compensation awarded, and costs of the proceeding, if any, has been made, as directed in the final order, and a certified copy of such order has been served upon the owner, he shall, upon demand of the plaintiff, deliver possession thereof to him, and in case possession is not delivered when demanded, the plaintiff may apply to the court without notice, unless the court shall require notice to be given, upon proof of such payment and of service of the copy order, and of the demand and non-compliance therewith, for a writ of assist ance, and the court shall thereupon cause such writ to be issued, which shall

be executed in the same manner as when issued in other cases for the delivery of possession of real property.

§ 3374. Abandonment and discontinuance of proceeding. Upon the application of the plaintiff to be made at any time after the presentation of the petition and before the expiration of thirty days after the entry of the final order, upon eight days' notice of motion to all other parties to the proceeding who have appeared therein or upon an order to show cause, the court may, in its discretion, and for good cause shown, authorize and direct the abandonment and discontinuance of the proceeding, upon payment of the fees and expenses. if any, of the commissioners, and the costs and expenses directed to be paid in such final order, if such final order shall have been entered, and upon such other terms and conditions as the court may prescribe; and upon the entry of the order granting such application and upon compliance with the terms and conditions therein prescribed, payment of the amount awarded for compensation, if such compensation shall have been theretofore awarded, shall not be enforced, but in such case, if such abandonment and discontinuance of the proceeding be directed upon the application of the plaintiff, the order granting such application, if permitting a renewal of such proceedings, shall provide that proceedings to acquire title to such lands or any part thereof shall not be renewed by the plaintiff without a tender or deposit in court of the amount of the award and interest thereon. [AM'D BY CH. 475 OF 1894. Took effect May 3,

1894.

A public body or public officers having the right of eminent domain for public purposes may be permitted to discontinue proceedings to acquire lands at any time before any rights have become ves ed in the property owners. Matter of Washington Park, 56 N. Y., 144.

The confirmation of the report of commissioners prevents the abandoning of the proceedings. Matter of Rhinebeck & Connecti ut R. R. Co., 67 N. Y., 242.

Until the confirmation of the commissioners appointed to assess damages, the court may allow a discontinuance of the proceedings. Ex parte N. Y., Syracuse & B. R. R. Co., 4 Hun, 311.

§ 3375. Appeal from final order; stay. Appeal may be taken to the appellate division of the supreme court from the final order, within the time provided for appeals from orders by title four of chapter twelve of this act; and all the provisions of such chapter relating to appeals to the appellate division of the supreme court from orders of the special term shall apply to such appeals. Such appeal will bring up for review all the proceedings subsequent to the judgment, but the judgment and proceedings antecedent thereto may be reviewed on such appeal if the appellant states in his notice that the same will be brought up for review and exceptions shall have been filed to the decision of the court or the referee, and a case or a case and exceptions shall have been made, settled and allowed as required by the provisions of this act for the review of the trial of actions in the supreme court without a jury. The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court upon notice to him, and the appeal shall not affect his possession of the property taken, and the appeal of a defendant shall not be heard except on his stipulation not to disturb such possession. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

The objection that a corporation, secking to condemn property under the right of eminent domain, has no legal existence should be taken in proper time; if not, the objection cannot be raised on appeal to the court of app.als. Matter of Union E. R. R. Co. of Brooklyn, 112 N. Y., 61.

Any person deeming himself aggrieved may appeal. N. Y. & E. R. R. Co. v. Corey, 5 How., 177.

An appeal lies to the court of appeals from an order of the general term, affirming an order of the special term. Rensselaer & S. R. R. Co. v. Davis, 43 N. Y., 137.

But it will not review matters of discretion. Matter of N. Y. C. & H. R. R. R. Co., 64 id., 60. To the same effect Matter of Kings Co. E. R. R. Co, 82 id., 100.

An appeal from so much of the order of the general term, reversing an award confirmed by the special term, as refused to appoint new commissioners, when the latter were named in a stipulation, is reviewable in the court of appeals. Matter of N. Y. & L., etc., R. R. Co., 98 N. Y., 447.

The rule which deprives a party of the right to appeal from an order or judgment under which he has taken a benefit is not applicable to these proceedings, and the right to appeal is not affected by accepting payment for the land and giving receipt therefor. Matter of N. Y. & H. R. R. Co., 98 N. Y., 12. To the same effect Matter of N. Y., W. S. & B. R. R. Co., 94 N. Y., 287.