County of Niagara v. Wendt

Appellate Division of the Supreme Court of New York

County of Niagara v. Wendt

34 A.D.2d 877, 312 N.Y.S.2d 456, 1970 N.Y. App. Div. LEXIS 4860

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 14, 1970

StatusPublished

Cited by1 cases

This text of 34 A.D.2d 877 (County of Niagara v. Wendt) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

County of Niagara v. Wendt, 34 A.D.2d 877, 312 N.Y.S.2d 456, 1970 N.Y. App. Div. LEXIS 4860 (N.Y. Ct. App. 1970).

Pincite

Opinion

Order and judgment unanimously reversed on the law and facts, without costs and proceeding remitted to the Commissioners for action in accordance with the following memorandum: The Commissioners’ findings of fact are insufficient for appropriate judicial review. The expert testimony proffered by the respondent was that the condemned land had a highest and best use for crop and dairy farm purposes except for an area of land 1,200 feet by 200 feet fronting on Saunders Settlement Road, which respondent’s appraiser stated was best suited for residential lots. The appellant’s appraiser stated the condemned land had a highest and best use for crop and dairy farm purposes only. The Commissioners failed to resolve the factual dispute as to the highest and best use and it is impossible to determine whether they accepted either expert opinion (New York State Elec. & Gas Gorp. v. Tompkins, 29 A D 2d 576). An award within the range of the expert testimony will not be rejected (Matter of Suie [Fletcher-Gity of New York], 2 N Y 2d 168), but here there is no such range since the opposing experts could not agree on the highest and best use (Stiriz v. State of New York, 26 A D 2d 964). While we recognize the liberal standard used in these cases (New York State Elec. & Gas Gorp. V. Moratto, 25 A D 2d 913; Matter of City of Rochester [Smith St. Bridge], 234 App. Div. 583; cf. Matter of Ford [Siska—City of New York] 22 N Y 2d 834), the findings set forth in this report are totally inadequate to permit proper review (New York State Elec. & Gas Gorp. v. Tompkins, supra). We are, therefore, obliged to remit the proceeding to the Commissioners for a supplemental report. (Appeal from order and judgment [878]*878of Niagara County Court in condemnation proceeding.) Present — Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order and judgment unanimously reversed on the law and facts, without costs and proceeding remitted to the Commissioners for action in accordance with the following memorandum: The Commissioners’ findings of fact are insufficient for appropriate judicial review. The expert testimony proffered by the respondent was that the condemned land had a highest and best use for crop and dairy farm purposes except for an area of land 1,200 feet by 200 feet fronting on Saunders Settlement Road, which respondent’s appraiser stated was best suited for residential lots. The appellant’s appraiser stated the condemned land had a highest and best use for crop and dairy farm purposes only. The Commissioners failed to resolve the factual dispute as to the highest and best use and it is impossible to determine whether they accepted either expert opinion (New York State Elec. & Gas Gorp. v. Tompkins, 29 A D 2d 576). An award within the range of the expert testimony will not be rejected (Matter of Suie [Fletcher-Gity of New York], 2 N Y 2d 168), but here there is no such range since the opposing experts could not agree on the highest and best use (Stiriz v. State of New York, 26 A D 2d 964). While we recognize the liberal standard used in these cases (New York State Elec. & Gas Gorp. V. Moratto, 25 A D 2d 913; Matter of City of Rochester [Smith St. Bridge], 234 App. Div. 583; cf. Matter of Ford [Siska—City of New York] 22 N Y 2d 834), the findings set forth in this report are totally inadequate to permit proper review (New York State Elec. & Gas Gorp. v. Tompkins, supra). We are, therefore, obliged to remit the proceeding to the Commissioners for a supplemental report. (Appeal from order and judgment [878]*878of Niagara County Court in condemnation proceeding.) Present — Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

34 A.D.2d 877, 312 N.Y.S.2d 456, 1970 N.Y. App. Div. LEXIS 4860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-niagara-v-wendt-nyappdiv-1970.

Opinion

Related

Cite This Page — Counsel Stack