In re the Condemnation of Lands by the Board of Recreation Commissioners
In re the Condemnation of Lands by the Board of Recreation Commissioners
Opinion of the Court
The subject-matter of the litigation involved in this case is the condemnation of land for a public playground. Commissioners to fix the compensation to be paid for the land taken were duly appointed and an award therefor was made. An appeal from the award was taken to the Circuit Court of Hudson county. The case on appeal was tried before Judge Henry E. Ackerson with a jury.
From the judgment entered on the verdict of the jury an appeal was taken to the Supreme Court. That court reversed the judgment so entered on the ground that three photographs (Exhibits 8, 9, 10) were illegally admitted in evidence by the trial court. These pictures showed certain pieces of sidewalk that had been laid over piling. From the ruling of the Supreme Court reversing the judgment of the Hudson Circuit Court, an appeal was taken to this court. Our reading of the record leads us to the conclusion that the Supreme Court fell into error inn reversing the judgment. In order to make clear the point involved, a short summarized statement of some of the essential facts is necessarjL The land taken is part of the estate of Steffen Dieckmann, in the town of West Hew York, Hudson county; beginning at a point formed by the intersection of the northerly line of Tenth street and the westerly line of Broadway, running along the westerly line of Broadway seven hundred feet to the southerly line of Thirteenth street; along the southerly line of Thirteenth street two hundred and eighty feet to the easterly line of the right of way of the Palisade railroad, then along the easterly line of the Palisade railroad seven hundred feet to the northerly line of Tenth street; easterly along the northerly line of Tenth street two hundred and eighty feet to the place of beginning. So, the tract of land taken consists of three 'contiguous blocks running from Tenth to Thirteenth streets.
Mr. Frank J. Oleri, the engineer of the town of West Hew York, in company with Mr. Dunham, an engineer representing the landowners, made borings or soundings of the above-described lot of land. Elihu Stevens, an engineer and con
Mr. Oleri, being recalled, testified that lie had been also an assessment commissioner in the town of West New York; that lie was familiar with the lands. He was shown a photograph representing a view of Thirteenth street improvement from Broadway looking east. So, a photograph taken at Tenth street opposite the church. So, of Tenth street looking west from Broadway, that shows the condition of the sidewalk; it is sunk at the house line and at the curb also. So, the corner section of Broadway and Tenth street. So, at Thirteenth street looking southwest. So, at Tenth street looking north. All these photographs, seven in number, were admitted without objection. Then a photograph was produced which purports to show the condition of Ninth street. This was objected to. The court — “You will satisfy me that it is the same character of land.” The witness— “A. They are the same boggy condition, and boggy area exists clear up to Fourteenth street.” The court- — “All up to-Fourteenth street?” The witness — “All up to Fourteenth street.” The court — “How long have you known this tract?” The witness — “About fifteen years.” The witness — “This point from the land being condemned is approximately two hundred and seventy-five feet.” The photograph was admitted in evidence, an exception noted. This photograph was marked Exhibit 8. It represents a condition of Ninth street east of Broadway. So, a photograph of Ninth street looking-east from Dewey avenue showing both sides of the street. This shows the same street as Exhibit 8, i. e., Ninth street, excepl it was taken at a different angle, this also was admitted in evidence as Exhibit 9, an exception being noted. So, a photograph purporting to show a view of Ninth street taken at about Broadway looking east. This, when offered, was objected to and admitted in evidence as Exhibit JO, when admitted in evidence, however, no objection was made to the ruling of the court admitting the photograph or
If they were admissible for any purpose, it was not error to receive them in evidence, even though the trial judge gave a wrong reason (which he did not) for receiving them, and even though they were offered as stated by the Supreme Court, to show a special condition at a particular spot, which was a wrong purpose. Hill v. Maxwell, 77 N. J. L. 766; State v. Terry, 91 Id. 539, 543; 1 Wigm. Ev. 40, § 13; 23 Corp. Jur. 56, § 1798. In 77 N. J. L. 766, it was held evidence considered from two aspects, but competent in one only, is admissible and such ruling is not error. The remedy
But, under many cases in this court, of which Brown v. New Jersey, &c., Railroad Co., 76 N. J. L. 795; Manda v. City of Orange, 82 Id. 686; Ross v. Commissioners, &c., 90 Id. 461, are illustrative; it is a matter largely in the discretion of the trial judge, as to how far he will permit evidence pE collateral conditions, and unless it is clear that his discretion has been abused, the appellate court will not disturb the ruling. There is evidence in the record from which the court could clearly determine that there were similar conditions, in so far as the boggy nature of the soil was concerned. There was abundant proof from both sides that the property under condemnation, in part, at least, would require piling to make it profitable, and when it appears that the conditions below the surface are much the same, it was entirely competent to show what had happened under these conditions. No piles had yet been placed in the condemned property, and it was of prime importance that the jury should know what the effect of piling would be. The experience of another piece of land approximately two hundred and seventy-five feet distant of the same general character of soil would be the strongest evidence of what might be expected from the rest, and it was therefore a relevant circumstance to make the inquiry. The trial judge exercised a discretion which ought not to be disturbed.
It may not be amiss to add what these photographs revealed had been testified to quite fully without objection, so that, in any event, their admission was quite harmless, as it seems to us, hence, under the Practice act of Pamph. L. 1912, p. 382, § 27. No judgment should be reversed for the improper admission of evidence, unless, after an examination of the whole case, it shall appear that the error injuriously affected the substantial rights of a party.
For affirmance — None.
For reversal — The Chancellor, Chief Justice, TrenCHARD, KaLISCH, BLACK, CAMPBELL, LLOYD, VaN BuSKIRK, McGlennon, Kays, Hetfield, JJ. 11.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.