and 106 New York State Reporter inspection by the commissioners. It nowhere appears that any further evidence was offered in behalf of the town of Kinderhook, or that it had any further witnesses that it desired should be sworn in its behalf; neither was there any request by the town for a further hearing before the commissioners. The order made by the commissioners recites the appearance of the parties at the several hearings, and further recites that they were fully heard. The desirability of abolishing grade crossings wherever practicable is generally recognized, and requires no argument. The opinion of the railroad commissioners, who are appointed with special reference to their knowledge of matters connected with railroads and their operation, is entitled to weight and consideration. The rule is now well settled that this court should not reverse the determination of the commissioners, unless it is clearly made to appear that their decision was founded upon erroneous legal principles, or was contrary to the clear weight of evidence. People v. Board of Railroad Com'rs, 53 App. Div. 61, 65 N. Y. Supp. 597; People v. Board of Railroad Com'rs, 160 N. Y. 202, 54 N. E. 697; In re Amsterdam, J. & G. R. Co., 86 Hun, 578, 33 N. Y. Supp. 1009; In re Auburn & W. R. Co., 37 App. Div. 162, 55 N. Y. Supp. 895; Town Board of Schaghticoke v. Fitchburg R. Co., 53 App. Div. 16, 65 N. Y. Supp. 498; In re North Third Ave., 32 App. Div. 394, 53 N. Y. Supp. 46. There is no error in the admission of evidence that would justify a reversal of the findings of the commissioners, and we cannot say that they are based upon any erroneous legal principle, or that they are against the weight of evidence. Whatever is necessary for the protection of the lives and property of citizens is embodied in the police power of the state. That the legislature, either directly or through the board of railroad commissioners, can exercise authority over railroad crossings in securing public safety without violating the federal or state constitutions, has been frequently held. New York & N. E. R. Co. v. Town of Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269; In re City of Northampton, 158 Mass. 299, 33 N. E. 568; People v. New York Cent. & H. R. R. Co., 156 N. Y. 570, 51 N. E. 312; Railroad Co. v. Brownell, 24 N. Y. 345. See Health Department of City of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32, 39 N. E. 833, 45 Am. St. Rep. 579; In re City of Buffalo, 167 N. Y. 256, 60 N. É. 589; People v. Coler, 166 N. Y. 1, 59 N. E. 716. In case a municipal corporation is unable to purchase the lands, rights, or easements necessary or required for the purpose of carrying out an order. of the railroad commissioners, such lands, rights, and easements must, by express provision of the statute, be acquired under the condemnation law, and private property is not taken for public use in violation of the constitution. Neither is the grade crossing act in conflict with the constitution, which prohibits giving money of the state or town in aid of a corporation. The abolition of this grade crossing is not alone for the benefit of the Boston & Albany Railroad Company and the Kinderhook & Hudson River Railroad Company, but it is to the advantage of the people of the town of Kinderhook, in that thereby public safety is enhanced. Tocci v. City of New York, 72 Hun, 46. 25 N. Y. Supp. 1089. We cannot say that the amount that the town of Kinderhook will have to pay under said order is in excess of the benefit to be derived in public safety. The determination of the board of railroad commissioners should be confirmed, with $50 costs and disbursements. (36 Misc. Rep. 13.) PEOPLE ex rel. ROBINSON v. BANFIELD et al. (Supreme Court, Special Term, Chemung County. June 3, 1901.) 1. CERTIORARi-Return-FoRM OF DENIAL. The denial on a return to a writ of certiorari referring to the paragraphs in the petition is insufficient to put in issue any of the material facts stated in such petition, since such denial is in effect only a denial of the paragraph, and not of the facts therein. 2. TAXATION—ASSESSMENTS-DESCRIPTION OF Property. Where the description of property sought to be assessed is not sufficiently accurate to designate such property, the assessment thereof is invalid. 8. SAME-Legality. Where an assessment has been set aside because of an insufficient designation of the property, carrying it into the tax for the subsequent year will not make the reassessment legal. 4. JUDGMENTS-RES JUDICATA. The decision of a court holding an assessment illegal because of inaccurate description of the property is res judicata in a subsequent proceeding relating thereto. Certiorari by the people, on the relation of Emma A. Robinson, as trustee for Lucius Robinson and another, against Mark Banfield and others, to review an assessment. Judgment rendered. David C. Robinson, for relator. Taylor, Heller & O'Connor, for respondent supervisors. Mr. McCann, for respondents. Thomas F. Fennell, for respondent chamberlain of City of Elmira. FORBES, J. This is a proceeding by certiorari, taken under section 250, c. 908 (vol. I, p. 882) of the Laws of 1896. Prior to the institution of these proceedings by the relator an illegal assessment had been made against the property held by her as trustee for her children, Lucius and Emma D. Robinson. On a former appeal from said assessment, in 1899, the assessment was set aside by the court as illegal, probably upon the theory that the assessment was made against the estate and not against the trustee, and inferentially also for the reason that the assessment was unequal and exorbitant. These facts are now before me, with a contingent stipulation reducing the amount of the assessment in case certain preliminary objections are overruled. On the first proposition, see Chadwick v. Supervisors, 59 App. Div. 334, 69 N. Y. Supp. 853. At a meeting of the board of supervisors in 1900 the same property was reassessed against the relator as the trustee of said infants, and so far that first error was probably corrected. In this proceeding, however, it is asserted that and 106 New York State Reporter the tax as reassessed and levied is illegal, and that the method of carrying said tax into the assessment roll, as adopted by the defendant supervisors, under section 54 of said statute, is still illegal. The stipulation now before me removes from this discussion the question of the inequality of that assessment. The only question now raised is whether the reassessment, under a former decision of the court, is illegal. After an adverse decision by the court, the board of supervisors had no right to carry into the assessment of 1900 the assessment of 1899. Treating the return to the writ made by the defendants as an answer or pleading, thus attempting to put in issue the facts set forth in the complaint, it seems to me that the return answer is defective and does not put in issue any of those material facts stated in the relator's petition, under the present form of denial in the return, for the reason that each denial as made refers to a paragraph in the relator's petition, and is, in effect, only a denial of the paragraph, instead of being a denial of the facts contained in such paragraph. Williams v. Lindblom, 68 Hun, 173, 22 N. Y. Supp. 678, affirmed in 142 N. Y. 682, 37 N. E. 825; Lyth v. Green, 21 App. Div. 300, 47 N. Y. Supp. 478; Baylis v. Stimson, 110 N. Y. 621, 17 N. E. 144. The assessment by the board of supervisors in 1900 does not contain a definite and plain description of the premises so carried into the assessment roll which is sufficiently accurate to clearly locate the land, or enable it to be identified beyond a question. The rule laid down in Re New York Cent. & Hudson River R. Co., 90 N. Y. 342, is as follows: "An accurate designation or description of land assessed is essential to the validity of the assessment. If the description is insufficient to enable one to locate the land, no foundation (legal basis for assessment) is afforded for future proceedings, and they cannot be sustained." Property assessed "must be designated by boundaries, or in some other way by which it may be known with reasonable accuracy, or it cannot be sold for nonpayment of taxes." Zink v. McManus, 121 N. Y. 259, 24 N. E. 467. Where such an error has been made in the previous assessment, and that assessment has been set aside, it cannot be carried into the tax for the subsequent year, and so make the reassessment legal. Brennan v. City of Buffalo, 162 N. Y. 491, 57 N. E. 81. Where the whole question has been before the court, and by it determined adversely, it seems to me that in the second proceeding the first decision is res judicata. That appears to be the situation in the case at bar, and this court is constrained to so hold. The contingent stipulation of the parties reducing the assessment from $4,500 to $2,500 for the years 1897, 1898, and 1899 is hereby confirmed; and an order may be entered directing the board of supervisors to reassess said property and relevy the tax thereon, as modified by said contingent stipulation, which is made a part of the record. The preliminary objections raised by the respondents' attorneys are hereby overruled, and judgment may be entered accordingly. In re OPENING OF FULTON AVE. (Supreme Court, Special Term, New York County. June, 1897.) EMINENT DOMAIN-QUESTION OF TITLE. Commissioners of estimate and assessment should not determine questions of title, and, where title is litigated, an award to unknown heirs is proper. In the matter of the opening of Fulton avenue from Spring Place to the boundary line of the Twenty-Third ward. Motion to confirm commissioners' report. Report confirmed. LAWRENCE, J. It is not the duty of, nor is it proper for, the commissioners of estimate and assessment to determine questions of title. In re William and Anthony Sts., 19 Wend. 678; Spears v. Mayor, etc., 87 N. Y. 359-373; Cassidy v. Mayor, etc., 62 Hun, 358, 17 N. Y. Supp. 71. Until the cases pending in this court between Evan Jones and John Jones or his heirs, and between Evan Jones and Morgan Jones and his heirs, are determined, the question of title is in doubt. The commissioners were therefore right in making the award to unknown owners, and it follows that an order should be made confirming their report. (35 Misc. Rep. 548.) In re ARMORY BOARD. (Supreme Court, Special Term, New York County. July, 1901.) 1. EMINENT DOMAIN-COMMISSIONERS OF ESTIMATE-REPORT. In computing the 10 days within which under Greater New York Charter (Laws 1897, c. 378) § 1440, objections must be filed after the first publication of the notice of the deposit of the report of commissioners of estimate of the city of New York, Sundays must be included. 2. SAME-PLottage. By the term "plottage," used in determining the value of condemned lands, is meant the added value which an entire plot has as against the aggregate value of the several lots. 8. SAME-ESTIMATING VALUE. In determining plottage in estimating the value of land to be taken, the fact that existing improvements may have to be destroyed in order that the present owner may improve the land, so as to adapt it to a new use, cannot be considered. 4. SAME-AWARD-REVIEW. The amount of an award by commissioners of estimate for damages for land taken will not be reviewed, unless grossly inadequate or excessive. 5. SAME TITLE IN DOUBT. Where title to a lot condemned is in doubt, the commissioners may award it to unknown owners. and 106 New York State Reporter In the matter of the application of the armory board relative to acquiring title in the city of New York to certain lands. Objections filed to report of commissioners. Proceedings remitted to com missioners. John Whalen, Corp. Counsel (Charles D. Olendorf, of counsel), for the motion. Bookstaver & Norton, John C. Shaw, and Putney, Twombly & Putney (H. W. Bookstaver and Henry B. Twombly, of counsel), opposed. BLANCHARD, J. Numerous objections are made by a number of the property owners whose property is affected by the report of the commissioners, all of which have been given consideration. The regularity of these proceedings is attacked because it is claimed that in the notice published pursuant to section 1440 of the Greater New York charter the requisite time for the filing of objections was not allowed. This objection is, in my opinion, not well taken. The law requires publication of notice of the deposit of the report of the commissioners "for ten days, Sundays and holidays excluded," and provides for the filing of objections to the report "within ten days after the first publication. The first publication occurred June 12th, and continued daily to and including the 22d of June, with the exception of June 16th, which was Sunday. It is claimed that objections could have been filed until June 24th, and that the hearing on the objections, which was set for the 24th, should have. been fixed at a subsequent date, because objections could have been filed at any time on that date, and the time of hearing should have been subsequent to the last day of the filing of objections. This contention is predicated upon the exclusion of Sundays in reckoning the "ten days after the first publication." I know of no authority for such a computation of time, unless it be expressly so provided by the statute. The statute, however, while it is particular to point out that Sundays should be excluded in the publication of the notice, does not so provide as to the filing of objections. It is to be presumed, therefore, that such was not the intention of the legislature. I am of opinion, however, that the commissioners erred in not making allowance for what is termed "plottage." By that term is meant the added value which a plot has as against the aggregate value of the several lots which compose it. The commissioners, in their report, state they make no allowance for this, "because the most liberal allowance on that account which the testimony would warrant would be less than the value of improvements, which would necessarily have to be wholly destroyed before an increased value by reason of 'plottage' results." The increased value which accrues to the owner of several adjoining lots composing a plot of land inures to the land irrespective of the buildings thereon. While it may be true that the buildings may have to be destroyed in order that the landowner may avail himself of the plot by increasing its usefulness or appropriateness to the locality, I do not think this a |