BURR, J.
[1] If any authority exists to permit the maintenance of a structure like the coal carrier described in the evidence in these proceedings across Alexander street, it rests in the common council of the city of Yonkers. Laws 1908, c. 452, art. 3, § 1. Even the common council could not authorize the maintenance of a structure which was a nuisance. City of New York v. Knickerbocker Trust Co., 52 Misc. Rep. 222, 102 N. Y. Supp. 900, affirmed 121 App. Div. 740, 106 N. Y. Supp. 506. The order appointing the commissioners confers upon them no jurisdiction to determine whether this structure is a nuisance or not. That may be a question of fact which can only be determined when the proper parties are before the court, in an action brought for that purpose. The possible consequences of a rule of law such as is suggested in the opinion of Mr. Justice WOODWARD seems to me to be sufficient to condemn it as unsound. Under that rule, if the property owner had a factory building 100 feet long and 5 stories high, directly at right angles to the line of the proposed street, it would be within the power of commissioners of estimate to determine that a tunnel the width of the street and of a height equivalent to two stories of the building would be sufficient for street purposes, and they might by their decision give legal sanction to the maintenance of the remaining three stories above the line of the street. They would, in effect, do that when they provided that the property owner should be compensated not for the destruction of the whole of that portion of the building within the line of the street, but only for such part of it as they determined should be actually removed.
[2] We do not think that there is any serious question as to the sufficiency of the original objections to the award of the commissioners. Their report indicated the theory upon which they had proceeded. The objection clearly pointed out that this theory was erroneous. The fact that in that connection reference was made to the specific sums allowed for protecting the conveyor and for moving the scales would not detract from the scope of the objection. The most that could be claimed would be that, while the propriety of the theory adopted by the commissioners was attacked, an improper reason or not all of the reasons were stated for the grounds of such attack. No amendment of the objection was really necessary. It is also true that in the testimony offered by the property owner in the first instance he stated as the extent of his damage, based upon the value of the entire parcel before and after the taking, the sum of $8,200. It is quite clear that in this testimony he was referring only to the value of the land, for in his subsequent testimony he stated in detail the consequences of removing the conveyor and the trestle supporting the same, and introduced evidence as to the expense of the necessary change, all of which was received without objection.
The orders appealed from should be affirmed, with $10 costs and disbursements. All concur, except WOODWARD, J., who dissents
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