In re Widening Bushwick Avenue

The following opinion was delivered at the general term.

By the Court, J. F. Barnard, J.

Unless the commissioners proceeded upon an erroneous principle,, it is not possible to review their determination upon questions of value •and damages. This is a necessary rule and well settled. (Matter of Central Park, 16 Abb. 56. Matter of Freeman Street, 17 Wend. 649. Troy and Boston R. R. v. Lee, 13 Barb. 169.)

A report of commissioners like these is never sent back, whatever may be the number of witnesses who differ in their estimates from the commissioners in their opinions as to the damages. (Matter of William and Anthony Streets, 19 Wend. 678.) I do not find in the report any evidence of an erroneous principle of assessment. It is claimed by the counsel for Staats, that no damages were given for two of his cellars, which will be thrown under the street as widened, but so far under that 'the grading of the street will not destroy them. This would, I think, he erroneous, if it so appeared by the report. It does not so appear. The damage is reported as given for buildings and cellars. I cannot assume that this money to compensate Starts for any thing less than for all his (Staats) cellars, which will be by this opening thrown into the street. The taking of twenty feet on each side of the. avenue, and the appropriation of the same as court yards only, is such a taking as will justify an appraisement of damages therefor. A dominion is asserted over this land by the public, to the extent of depriving the owner' of his right to use and enjoy the same for any other purpose than a court yard.

[Orange General Term, September 11, 1865.

It is so far taken for public use, and is a subject for compensation. The report shows that' the commissioners estimated such lands at much less than lands actually thrown into the street.

I do not find any errors or omissions in the proceedings preliminary and subsequent to the report.

The order should be affirmed.

Brown, Lott and J. F. Barnard, Justices.]