273 A.D. 884 | N.Y. App. Div. | 1948
Judgment affirmed, with costs. No opinion. Present — Peek, P. J., Glennon, Dore, Cohn and Callahan, JJ,; Peck, P. J., and Callahan, J., dissent upon the ground that the abandonment of the use specified in the deed had either actually occurred or was imminent and inevitable at the time of the taking in coftdemnation. The breach of the condition subsequent in the deed was not the consequence of the condemnation, but the result of administrative mandates having the force of law effective as of dates antecedent to the proceedings in condemnation. We are of the opinion that under the circumstances the defendant is not entitled to more than a nominal part of the award, and the plaintiffs are entitled to the remainder. Accordingly, we vote to reverse the judgment appealed from and grant judgment for the plaintiffs to the extent indicated.
