22 A.D.2d 757 | N.Y. App. Div. | 1964
—Judgment unanimously modified on the law and facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: The claimant was awarded $55,500 for the entire taking of her property. It was conceded that the highest and best use for this property was commercial. At the time of the appropriation there was a dwelling house and combination garage and workshop on the property. The trial court awarded $40,850 as the market value of the land and $14,700 for the value of the buildings. The expert for the claimant as well as the State testified the buildings would of necessity have to be removed from the property to permit its use for commercial purposes. It was error, therefore, to award anything for the value of the buildings while at the same time fixing the land value for commercial usage since the two bases are entirely inconsistent (New York Cent. Hudson Riv. R. R. Co. v. Domproff, 63 Misc. 211; Matter of Erlanger, 237 N. Y. 159). Under the facts here the commercial value of the land was in no way enhanced by the value of the buildings (Matter of City of Rochester [Smith St. Bridge], 234 App. Div. 583). Following acquisition of the property the State did salvage $100 by the sale of the buildings. This, of course, should inure to the benefit of the claimant by being added to the award for the land. (Appeal from a judgment of the Court of Claims for claimant on a claim for permanent appropriation of realty.) Present — Williams, P. J., Bastow, Goldman, Noonan and Del Yecehio, JJ.
