Underhill v. Van Cortland , 1 Lock. Rev. Cas. 25 ( 1799 )

Spencer J.

delivered the opinion of the majority of the court. He stated that “ his opinion in favor of reversal was based upon the rejection of the testimony as to the original cost of the dam and raceway. This was certainly offered to be proved, and the arbitrators refused to hear it.

“ His Honor, the Chancellor, considered the proof offered of the original cost of the dam and raceway, as delusive and injurious, and (citing his language on this point,) I am under the necessity of dissenting from the opinion of the Chancellor. The evidence of the original cost of the dam and raceway, would not only be admissible and pertinent evidence, but under all the circumstances, the only and the best evidence to enable the arbitrators to ascertain the value of the works and erections, as contemplated by the parties in the lease.” (17 J. R. 413.)

“ What then, could throw so much light on the then value of the subjects to be appraised, as evidence of what it original! y cost to make them 1 The lapse of time which had intervened, would make it necessary and just to' make very considerable deductions from the first cost, in consequence of the decay of parts of the works. And if there are variations in the prices, dec., nothing can be more easily proved.

“I am entirely satisfied that the arbitrators refused to hear legal, pertinent, and material evidence; and that such refusal amounted to gross' misconduct in them; and that by the well-established principles of equity, it is good cause for setting aside the award.”'

The decree of the Chancellor was accordingly reversed in both suits, the bill of the plaintiffs in the original suit below, ordered to be dismissed with costs below to the defendants therein, and decree made in the cross suit that the appellants have the relief sought for and prayed in their cross bill &c.

For reversal 19, affirmative 7.