In re Daly

PER CURIAM.

Upon carefully considering this case a second time, after the reargument which has been had, we are not prepared to say that the learned judge at special term erred in setting aside the report of the commissioners herein, so far as it affects the property of the appellants Cole. The principal portion of the award, amounting to $36,990, was directed to be paid to the owners of what is known as the “Cales Parcel,” No. 64, “for the rights of milling, all rights of pondage, and all rights to raise and lower the waters of Lake Gleneida.” Two kinds of evidence were received by the commissioners in regard to the value of the rights thus taken: (1) Evidence of its value as a water power; and (2) evidence of its value for the purposes of a storage reservoir. The first class of evidence was properly received. City of Syracuse v. Stacey, 169 N. Y. 231, 62 N. E. 354. The case cited, however, is an authority adverse to the competency of the -second class of evidence. We think it is clear that the commissioners erred in taking into consideration the value of the Cole right with reference to its utility for storage purposes, and there was so much proof of this sort that we are strongly inclined to think that it must have influenced them in fixing.the amount of damages.

It is also to be observed that evidence was erroneously admitted as to the value of the water of Lake Gleneida to the city of New York. This proof is not sanctioned, as seems to have been supposed, by the decision of the general term of this department in Re Gilroy, 85 Hun, 424, 32 N. Y. Supp. 891. It was there held that, while in -such cases as this the commissioners should take into consideration the availability of the property for use in connection with the water supply of New York City, the value of the particular property to the city in view of its necessities was not a legal measure of damages. In other words, it was declared to be proper to consider, as an element in the market value of the property to be taken, the existence of a demand ■for such property on the part of the city; but this did not authorize an inquiry as to what that particular property was worth to the city. In a case of this kind, which relates to the rights of persons entitled to use the outlet of a lake for mil! purposes, the information acquired' by the commissioners in viewing the property to be taken is not of the same character or value as that obtained where the property viewed is merely a piece of land, and includes no intangible rights. Here the view is manifestly less helpful, and more depends upon the character and weight of the expert evidence which is laid before the commissioners. Hence the reception of incompetent evidence is more serious, for it is more likely to lead to an erroneous conclusion. On the whole, we are convinced that the Cole award would not have been as large as it is if the commissioners-had not adopted an erroneous rule as to the measure of damages.

As to the awards to the Drew Seminary and Henry F. Miller, however, the record discloses no sufficient reason for setting them aside,, and wé think they should have been allowed to stand.

The order appealed from should be modified so as to confirm the awards of the commissioners to the Drew Seminary and Henry F. Miller, including costs and counsel fees, and, as thus modified, affirmed.

Order modified so as to confirm the awards of the commissioners to the Drew Seminary and Henry F. Miller, including costs and counsel fees, and, as modified, affirmed, with $10 costs and disbursements to each of. the said appellants the Drew Seminary and Henry F. Miller.