Opinion
Argued November 31, 1925
Decided May 5, 1925
Appeal from the Supreme Court, Appellate Division, Fourth Department.
Frederic C. Rupp, Corporation Counsel ( Jeremiah J. Hurley of counsel), for City of Buffalo, appellant.
Louis L. Babcock and Frank Rumsey for Delaware, Lackawanna and Western Railway Company et al., appellants.
Myron S. Short and De Witt Clinton for Grade Crossing Commissioners, respondents.
Joseph Swart and Edward L. Jellinek for A. Schreiber Brewing Company, respondent.
Simon Fleischmann and Benjamin S. Dean for Henry A. Kamman, respondent.
Frank F. Williams for Frank L. Danforth, respondent.
The grade crossing commissioners of the city of Buffalo, having decided that it was necessary to close or discontinue a part of Bailey avenue, brought this proceeding under the authority of statute (L. 1888, ch. 345, § 12; L. 1911, ch. 358; L. 1916, ch. 576) for the appointment of commissioners to ascertain the compensation payable to abutting owners. The city of Buffalo and the railroad companies made answer in opposition to the petition that the owners, though barred of access to the north, had been left with access to the south; that this access was adequate and reasonable, with the result that the ensuing inconvenience was damnum absque injuria; and that the amendatory act of 1916, if it enlarged the liability of the railroads, was void to that extent as an unconstitutional impairment of the obligation of an existing contract. A trial of these issues was had before a justice of the Supreme Court, who filed an opinion in favor of the petitioners, but for some unexplained reason did not enter an order thereon. A second application was then made, and was brought on for hearing before another justice, the notice of motion reciting the previous petition and all proceedings thereunder. On this application, an order was entered appointing three commissioners to ascertain and report the just compensation to be paid to stated owners for the injury suffered by the closing of the avenue. The commissioners thus appointed reported after a full hearing that they had computed and ascertained the damages at the sums stated in their report. Upon application to the court, the report was confirmed, and the order of confirmation has been unanimously affirmed.
Many interesting and important questions were discussed in the opinion of the Appellate Division and in the arguments of counsel. They are not open to consideration here. The mandate of the Constitution enforces upon us the presumption that the finding of damage, unanimously affirmed, is supported by the evidence, and that upon the application for the intermediate order there was a showing of injury sufficient to justify the appointment of commissioners (Constitution, art. VI, § 9). Objections to the admission and exclusion of testimony have been considered and have been found to be unsubstantial. There is nothing else to be reviewed.
The order should be affirmed with costs.
HISCOCK, Ch. J., CARDOZO, POUND, CRANE, ANDREWS and LEHMAN, JJ., concur; McLAUGHLIN, J., not sitting.
Order affirmed.