In re Acquiring Title by City of New York

223 A.D. 63, 227 N.Y.S. 239, 1928 N.Y. App. Div. LEXIS 6130

Opinions

Finch, J.

The decree appealed from, fixing the value of land taken in condemnation by the city, must be reversed, and a new trial' ordered upon the ground that evidence material to the issue was stricken from the record by the learned court.

The case presented but an issue of fact as to the value of the property taken. This depended in a very large measure upon the best use for which the property was available. The property consisted of a block front in the borough of Manhattan, on Fifth avenue between One Hundred and Third and One Hundred and Fourth streets. On the one hand, it was the contention of the experts for the city that the property was limited to institutions or the cheaper grade of walk-up apartments of approximately six stories in height. To this end evidence was permitted at great length of the rents received per room in such type of apartments in the side streets and even in sections remote from the premises in question. Particularly did the experts for the city condemn One Hundred and Second street and Fifth avenue as being unsuitable for the erection of high-class elevator apartments of fifteen stories, upon the ground that One Hundred and Second street was an unrestricted street and filled with garages. The experts sought to draw likewise a conclusion detrimental to the value of the property taken upon the ground that here also no high-class apartment house would back up on a school in One Hundred and Third street immediately in the rear of the property taken. The property taken was likened to the frontage on One Hundred and Second street upon the ground that both were unavailable for this type of apartment house because of the development in the rear, namely, in One Hundred and Second street, the garages; and in the case of the property taken, the public school. The more important contention, however, urged by these experts for the city was that the Mount Sinai Hospital, situated on Fifth avenue between Ninety-ninth and One Hundred and First streets, marked the northerly boundary of the high-class apartments. The city’s experts admitted that if the property was available for high-class apartments, it would add materially to the value given each lot; and there was testimony that such availability further south on the avenue increased the value approximately $25,000 a lot. The expér'ts for the claimant, on the other hand, earnestly contended that the property was available for first-class apartment houses, maintaining that the trend of such apartment houses was along the avenue in a northerly direction. It is also apparent from this record that the entire avenue has approximately the same outlook, and with continually improving methods of transportation, slight increase in distance makes no appreciable difference.-

The court at Special Term said in its opinion that he had disregarded entirely the testimony of the experts for the owner upon the ground that the values as given by them were grossly exaggerated, and, therefore, that he had relied upon the experts for the city and had taken the highest amount they had testified to and based the tentative award thereon. Upon the due hearing of the objections filed by the owner to this tentative decree, it appeared that the important question in the case had been removed from the sphere of speculation by evidence of facts which had not been available theretofore, to wit, the commencement of the construction of several first-class elevator apartment houses in the immediate neighborhood and particularly by the commencement of the construction upon the next corner, namely, the northeast corner of One Hundred and Second street and Fifth avenue, of a fifteen-story elevator apartment house, with the iron work actually up eleven stories. The learned court properly received this evidence. Subsequently this evidence was stricken from the record by the court upon the ground that it did not enlighten the court in ascertaining the increase in value between the date of the tentative decree and the time of the hearing, the court saying: “ The Court: As I do not see anything that enlightens me along the line of finding out the increase in value between June and now I shall strike out the evidence of the witness who was on the stand, Mr. Francis B. Robert. Mr. Bermant: Do you mean to strike out his entire testimony? The Court: Yes. Mr. Bermant: I except to your Honor’s striking it out and I except to your Honor’s ruling limiting the testimony to be produced only for the purpose of showing the increase of value, predicated upon your opinion of the value of the property as of the date of trial, and I desire an opportunity to prove the value of the property as of the present day.”

The above evidence was most material to the issue and should not have been stricken from the record. As already noted, the very expert upon whose testimony the final award was largely based, conceded that if the property were available for high-class, tall, elevator apartment houses, the value given by him would have been greater.

It is urged as a reason for affirming the judgment that an expert witness for the claimant testified that he had considered that the. best use for the property would be for a public institution. This was but one of three expert witnesses for the plaintiff. The testimony was elicited upon cross-examination and this witness further testified that the property also was suitable for use as an apartment house. As already noted, the other experts for the claimant supported the claimant’s position by positive testimony that the best use was for a first-class apartment house.

It follows that the decree appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

McAvoy and O’Malley, JJ., concur; Dowling, P. J., and Martin, J., dissent.