In re Kings County Elevated Railway Co.

Pratt, J. Commissioners were regularly appointed, and made their report, which was confirmed. In their report the commissioners certified as follows, to-wit: In determining the amount of such compensations, we made no allowance or deduction on account of any real or supposed benefits which the parties in interest may derive from the construction of the road. ” Although this clause was inserted in the report at the instance of the counsel for the railroad, an appeal has been taken by the railroad company, and it may be possible that it was error on the part of the commissioners not to determine and take into account in assessing the damages any supposed benefits that might accrue to the owner of the lands from building the road, although it would seem that if upon hearing the railroad company made no claim for benefits, it ought not to be regarded as error if the commissioners failed to consider that question. It is but just, however, to both parties, that the report should be sent back in order that the commissioners may consider and pass upon this question, and if necessary amend their report. The power of the court at special term to make such an order cannot be questioned. In re New York Cent. & H. R. R. Co., 64 N. Y. 60; also, In re New York, L. & W. R. Co., 29 Hun, 602, affirmed 93 N. Y. 385. We think the discretion was properly exercised by the court at special term in making the order appealed from, and it must be affirmed, with costs.