In re Collis

144 A.D. 382, 129 N.Y.S. 214, 1911 N.Y. App. Div. LEXIS 1708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1911
• Status: Published

Opinions

Ingraham, P. J.:

I agree with Mr. Justice Scott that where confirmation of a report is refused upon the ground stated by the learned justice at Special Term new commissioners should always be appointed, and if the refusal to confirm the award is affirmed that the order should be modified by appointing new commissioners, instead of sending it back to the commissioners whose award was not confirmed. An examination of the expert testimony in this case seems to show that the very great difference of opinion was based largely upon a difference as to what this property could be in the future used for, and what it could some time in the future be sold for, rather than its present market value.

In view of the testimony before the commissioners, and what seems to me to be the absence of any real evidence as to what the actual value of the property is, I do not think it was error for the court to provide that the question as to the value of the property taken should be determined by new commissioners when the evidence as to what the property would actually sell for to-day, rathór than its prospective value in the future could be more satisfactorily established. What I think the commissioners had to determine is its present value, what it would now sell for, and not what real estate experts think it would sell for at some future time. I think, therefore, that the order should be modified by sending the proceeding back to new commissioners to be appointed by the order, and as modified affirmed, with ten dollars costs and disbursements.

Laughlin, Clarke and Miller, JJ., concurred; Scott, J., dissented.