45 N.Y.S. 484 | N.Y. App. Div. | 1897
The court at Special Term set aside the report of the commis- ' sioners of appraisal appointed in this proceeding, upon the ground that the report showed on its face that the commissioners had adopted an erroneous theory of estimating the compensation. The question upon which the decision at Special Term proceeded wholly depends upon the construction to be given to the language used in two different portions of the report, which the learned court was of opinion were in conflict and contradictory. We are unable to concur in that view, though we think the conclusion reached was correct.
The land taken by the petitioner is a small triangle at the corner of defendants’ plot, seven feet six inches in front on the street, fourteen feet in depth, and containing about forty-five square feet. A short time before these proceedings were initiated the petitioner notified the defendants of its intention to acquire the triangular plot, at the time the defendants were proceeding to erect a building on their land. On the receipt of the notice from tire petitioner the defend- . ants modified the plans of their structure, so as to omit the triangle sought to be condemned. They had proceeded so far with their building as to lay a foundation wall on the triangle. At the litigation before the commissioners the defendants contended that they were to be allowed for damages occasioned by the change of plan and the diminution in the value of their structure, which was wholly completed at the time of the commencement of the proceedings. The commissioners reported as follows: “We have determined the value of the property taken to be the difference between the value of the whole property of which that taken formed a part before the taking, and the value of the whole property of which that formed a part after the taking. * * * In determining the fair market value as aforesaid, we have given due consideration and effect to the best and most
■ The Special. Term was of opinion that the-rule first-enunciated- by the commissioners,-that the measure of compensation was the difference between the value of the whole premises before the taking and the value of the. property left after the taking, was correct, but it further thought'that the statement in the concluding clause of the report, that “in the opinion of the commissioners this-course on the
We are of opinion, however, that there was an item of damage for which the defendants were not allowed and for which they were entitled to compensation. An allowance was made for the foundation left on the ground, but it appears that when the notice of intention to take the property was given the erection of the building had proceeded as far as the first tier of beams. Now, we agree with the commissioners that in determining the compensation they could not consider a proposed building which was never carried to completion, but this is not the ordinary case of a landowner seeking damages because his inchoate and unexecuted intention to improve the property in some particular manner is necessarily modified or frustrated. The work of constructing the building was actually being prosecuted at the time of the notice. It may be that the defendants were not prevented from' continuing their improvement until the title of the
The order appealed from should be affirmed, - with ten dollars costs and disbursements.
All concurred.
• Order appealed from affirmed, with ' ten dollars costs' and disbursements.