Dunham v. State

Appellate Division of the Supreme Court of New York

Dunham v. State

29 A.D.2d 596, 285 N.Y.S.2d 348, 1967 N.Y. App. Div. LEXIS 2732

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

DecidedDecember 18, 1967

DocketClaim No. 45440

StatusPublished

This text of 29 A.D.2d 596 (Dunham v. State) 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

Dunham v. State, 29 A.D.2d 596, 285 N.Y.S.2d 348, 1967 N.Y. App. Div. LEXIS 2732 (N.Y. Ct. App. 1967).

Pincite

Opinion

Aulisi, J.

Cross appeals from a judgment of the Court of Claims awarding damages for the permanent appropriation of a portion of claimants’ real property in the Town of Chenango, County of Broome, for interstate highway purposes. Before the appropriation, claimants’ property consisted of a 117-acre farm on which were located a two-family residence and certain farm buildings. The appropriation by the State of a 13.7 ± acre strip separated the property into two parcels, one of about 20 acres, containing the residence and farm buildings, and one of 83.49± acres of undeveloped land. The trial court found no damage to the value of the residence as a result of the taking, but found that the separation of the farm buildings from the larger parcel of farm land made the buildings an overimprovement to the smaller parcel and made the larger parcel merely vacant farm land which could foe used economically only if combined with another farm operation. As a result, the court found consequential damages [597]*597of $5,400 to the farm buildings and $6,500 to the remaining land, as well as damages of $2,036.85 for the land actually taken, making a total award of $13,936.85. The trial court’s implicit finding that the highest and best use of the property before the taking was as a dairy farm and its findings that the appropriation damaged its value as such are supported by the record. However, no testimony was presented by either party with respect to comparables. The expert witness for the State offered a valuation upon reproduction cost, less depreciation, but there was no testimony at the trial that the buildings were unique or a specialty, nor that there existed some other reason requiring reliance on the cost method. Since both parties contributed to this deficiency in proof, there should, in the interest of justice, be a new trial (Guthmuller v. State of New York, 23 A D 2d 597; Kingsbury v. State of New York, 27 A R 2d 893). Judgment reversed, on the law and the facts, and a new trial ordered, without costs. Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.

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Aulisi, J.

Cross appeals from a judgment of the Court of Claims awarding damages for the permanent appropriation of a portion of claimants’ real property in the Town of Chenango, County of Broome, for interstate highway purposes. Before the appropriation, claimants’ property consisted of a 117-acre farm on which were located a two-family residence and certain farm buildings. The appropriation by the State of a 13.7 ± acre strip separated the property into two parcels, one of about 20 acres, containing the residence and farm buildings, and one of 83.49± acres of undeveloped land. The trial court found no damage to the value of the residence as a result of the taking, but found that the separation of the farm buildings from the larger parcel of farm land made the buildings an overimprovement to the smaller parcel and made the larger parcel merely vacant farm land which could foe used economically only if combined with another farm operation. As a result, the court found consequential damages [597]*597of $5,400 to the farm buildings and $6,500 to the remaining land, as well as damages of $2,036.85 for the land actually taken, making a total award of $13,936.85. The trial court’s implicit finding that the highest and best use of the property before the taking was as a dairy farm and its findings that the appropriation damaged its value as such are supported by the record. However, no testimony was presented by either party with respect to comparables. The expert witness for the State offered a valuation upon reproduction cost, less depreciation, but there was no testimony at the trial that the buildings were unique or a specialty, nor that there existed some other reason requiring reliance on the cost method. Since both parties contributed to this deficiency in proof, there should, in the interest of justice, be a new trial (Guthmuller v. State of New York, 23 A D 2d 597; Kingsbury v. State of New York, 27 A R 2d 893). Judgment reversed, on the law and the facts, and a new trial ordered, without costs. Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.

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Bluebook (online)

29 A.D.2d 596, 285 N.Y.S.2d 348, 1967 N.Y. App. Div. LEXIS 2732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunham-v-state-nyappdiv-1967.